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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Judicial  Conveyance 


OF 


Real  Estate 


Being   the    Law   and    Procedure    in    Ohio   Whereby 

Under  Order  of  Court  Real  Estate  is  Sold 

and  Title  Thereto  Confirmed 

and   Transferred 


WITH  FORMS 


By 

WELLINGTON    LEE   MERWINE 

(Of  the  Columbus,  Ohio,  Bar) 


Cincinnati 
THE  W.  H.  ANDERSON  COMPANY 

Law  Book  Publishers 
1910 


/ 

M  <*$% 

llio 


J 


Copyright,  1910 

THE  W.  H.  ANDERSON  COMPANY, 

Cincinnati,  0.' 


To  my  sister, 

lEtfir  SClttte  Msrmxm, 

the  skillful  stenographer  ana  court 
reporter,  whose  most  valuable 
assistance  made  its  pro- 
duction possible, 
this  volume  is  dedicated. 


PREFACE 


The  author,  as  a  practicing  attorney  and  an  examiner 
of  real  estate  titles,  long  felt  the  need  of  a  text-book  in 
which  he  could  find,  under  any  of  the  subjects  treated  in 
the  twenty-one  chapters  herein  set  forth,  all  of  the  pro- 
cedure connected  therewith.  To  illustrate :  In  the  subject 
of  sale  of  an  entailed  estate  by  order  of  court,  the  prac- 
ticing attorney  could  find  a  form  for  the  petition  in  the 
books  on  Code  Pleading,  and  he  could  find  the  form  for 
the  orders  and  decrees  of  the  court;  but  when  lie  at- 
tempted to  find,  in  the  books,  a  connected  chain  of  the 
procedure,  leading  in  successive  steps  in  logical  order 
from  the  first  paper  filed  in  the  case  to  the  delivery  of  the 
deed,  he  failed  to  find  such  a  treatise.  The  author  experi- 
enced the  same  difficulty  when  examining  title  to  real 
estate  which  passed  through  the  courts.  This  work  is 
the  result  of  the  author's  many  years  of  experience  in  the 
practice  of  his  profession  and  in  the  investigation  of  real 
estate  titles.  It  is  a  practice  book  for  which  the  busy  prac- 
titioner will  find  use  every  day;  it  is  one  book  containing 
the  twenty-one  subjects  heretofore  found  here  and  there 
in  a  number  of  books.  The  works  on  pleading  and  jour- 
nal entries  in  this  State,  in  a  measure,  have  furnished 
tools  for  the  busy  lawyer;  yet  heretofore  he  has  found 
scattered  here  and  there  in  many  volumes,  what  he  has 
now  here  at  hand  in  one.     Aside  from  this,  a  large  part 

of   the   text  herein   and   much   of   the   procedure  in    the 

v 


vi  PREFACE. 

chapters  of  this  volume  can  not  be  found  in  any  of  the 
text -hooks. 

It  is  a  hand-book  for  everyday  use  for  the  practitioner 
as  well  as  the  examiner  of  real  estate  titles.  It  will  serve, 
we  trust,  the  purpose  for  which  it  has  been  written,  and 
it  will  thus,  in  a  measure,  be  of  some  compensation  to 
the  author  for  the  painstaking  labor  required  to  pro- 
dun  •  it.  Wellington  Lee  Merwine. 

Columbus,  Ohio,  June  1,  1910. 


TABLE  OF   CONTENTS. 


CHAPTER   I. 


Procedure  by  Which  a  Court  Acquires  Power  to  Transfer  Real  Estate 

From  One  Person  to  Another, 
section  page 

1.  Preliminary    statement 2 

2.  What  the  petition  should  contain 3 

3.  Requirement  as  to  caption  of  the  petition 3 

4.  The  manner  in  which  the  action  to  sell  real  estate  is  begun.  ...  3 

5.  The  necessity  of  service  of  summons  or  entry  of  an  appearance 

in  the  action 4 

6.  Requirement  as  to   precipe 4 

7.  The  summons  and  what  it  must  contain,  and  by  whom  served.  ...  4 

8.  When  the  summons  may  issue  to  another  county 6 

9.  Where  the  action  must  he  brought 6 

10.  Local  and  transitory  actions 11 

11.  When  the  action  may  be  brought  where  a  part  of  the  property 

is    situated 1 1 

12.  Where   the   action   for    specific   performance   of    a    contract  of  a 

sale  of  real  estate  must  be  brought 12 

13.  When  the  action  should  be  brought  in  the  county  where  the  cause 

of    action    arose 12 

14.  Where  actions  other  than  those  mentioned  in  Gen'l  Code,  §  11268 

(R.  S.  §  5019)   to  Gen'l  Code,  §  11272   (R.  S.  §  5023)   must 

be   brought 12 

15.  Venue  as  to  railroads  and  stage  companies 14 

16.  Venue  as  to  turnpike  company 14 

17.  Venue  prescribed  by  charter  of  corporation 14 

18.  Where  actions  against  non-residents  may  be  brought 14 

19.  General  rule  as  to  where  all  other  actions  must  be  brought....  17 

20.  How  change  of  venue  secured 18 

21.  Change  of  venue  in  suit  by  or  against  a  corporation 18 

22.  Summons   may   not  be  served   on   an   attorney   while   in   another 

county  on  professional  business  only 19 

23.  In   what  cases   persons   may  not   be  summoned 19 

24.  At  what  time  summons  is  returnable .' 19 

25.  Issuance  of  alias  writs -0 

26.  By  whom  service  of  summons  may  be  made 21 

27.  What    parties    are   hound  by    the   return 21 

28.     The  manner  in  which  summons  is  served 22 

vii 


viii  TABLE   OF    CONTENTS. 

SECTION  PAGE 

29.  .Service  of  partners  in  attachment — Replevin 23 

30.  What  is  equivalent  to  service  of  summons 23 

31.  How  service  of  summons  may  be  set  aside 24 

32.  How  service  of  the  writ  is  made  on  a  corporation 25 

33.  What  the  return  of  service  must  show 26 

34.  What  is  meant  by  managing  agent 27 

35.  Service  of  summons  upon  joint  stock  companies 28 

36.  How   insurance   company   served 28 

37.  When  the  service  may  be  had  upon  the  managing  agent 29 

38.  Service  of  summons  upon  a  minor 29 

39.  Conduct  of  the  defense  for  and  on  behalf  of  an  infant 30 

40.  The  nature  of  the  services  of  a  guardian  ad  litem 31 

41.  The  defense   of   an   infant   by   guardian    ad    litem   should   be   a 

real    defense 31 

42.  Rights  of  infants  reserved  in  judgment,  how 33 

43.  Power  of  guardian  to  act  for  ward  in  partition  proceedings.  ...  34 

44.  Guardian  ad  litem  in  sale  of  real  estate  by  guardian 34 

4.">.  Guardian  ad  litem — Sale  of  real  estate  by  an  administrator  to 

pay    debts 34 

46.  Service  of  summons  by  publication 35 

47.  When  and  in  what  actions  service  by  publication  may  be  made.  35 

48.  Service  of  publication  in  attachment 38 

49.  A  finding  of  notice  by  publication  not  subject  to  collateral  attack  38 

50.  Affidavit   required  before  publication  is  made 39 

51.  How    the   publication    must   be    made 39 

52.  When  the  service  by  publication  is  complete 40 

.">:{.  When  solvit f  copy  of  petition  may  be  made  out  of  the  estate.  41 

.">  f.  How   publication  made  against  an  unknown  heir 41 

55.  Manner   of  Bervice  where  two  or   more  defendants   are  jointly 

liable     41 

66.  Lis    i"  "'/'  ns 42 

57.  Lis  pendens  as  to  suits  in  other  counties 42 


<  HAPTER  II. 

Tin.  Law   ami  Pbocedtjbe  ra   Sale  of  Real  Estate  Under  Judgments, 
Obdebs  of  Sale   \\i>  Executions. 

What   Is  a  judgment   and  what  an  order 46 

The  judgment  mus1  be  confined  to  the  issues 48 

Judgments    withoul    jurisdiction    of   parties    or   subject   matter 

ifl     void 4!) 

II.     Judgments  cannot   be  collaterally  attacked 51 

62.     A  judgment  of  the  court  as  between  the  parties  is  final 52 

The  effect   <>f  court's   Bnding  of  facts  giving  it  power  to  enter 

judgment    53 

•  ■       oidable  and   %  <  >  1  <  1  judgment 54 

rule  caveat  emptor  applies  to  purchasers  at  judicial  sale..  56 


TABLE   OF    CONTENTS.  IX 

SECTION  PAGE 

66.  Effect  of  sales  made  under  a   void  and  voidable  judgment  and 

decree     57 

67.  Purchasers  at  judicial  sale  protected  by  the  recording  statute..  57 

68.  Judgments    may    be   vacated    during   the   term,    when 58 

69.  Judgments  may  be  vacated  after  term,  when 59 

70.  Effect  on   purchaser's   title   at  judicial   sale   when  judgment   or 

decree   reversed   and   set   aside til 

71.  Remedy  of  purchase  at  sale  on  execution,  if  the  sale  is  invalid.  .  02 

72.  Not  necessary  to  reserve  rights  of  infants  in  a  judgment  to  be 

entered    against    them (53 

73.  Bona  fide  purchaser  not  affected  by  the  preceding  section 63 

74.  Manner  in  which  a  dormant  judgment  may  be  revived 04 

75.  The  limitation  as  to  revivor  of  judgment 04 

76.  New  parties  to  judgment  and  revivor  of  judgment  when  a  party 

dies — Judgment  in  circuit  court  remanded  to  common  pleas 

for    execution — How    revived    after    death 05 

77.  Judgments  against  parties,  and  against  defendants  at  different 

times    65 

78.  A  judgment  will  operate  as  a  conveyance,  when 66 

79.  How  judgment  entered  against  a  married  woman 66 

80.  All  judgments  must  be  entered  by  clerk  in  conformity  to  verdict.  66 

81.  When  the  court  to  order  what  judgment  to  be  entered  on  verdict.  07 

82.  When  judgment  may  be  entered  against  the  verdict 67 

83.  All  judgments  must  be  entered  in  the  journal 07 

84.  Complete  record  of  case  to  be  made,  unless  waived 08 

85.  When  record  is  to  be  made  and  signed 68 

$6.     Of  what  the  complete  record  shall  consist 6S 

87.  Court  to  cause  record  to  be  completed  in  certain  cases 08 

88.  What   index  is  required  for  judgments 69 

89.  The  precipe  for  an  execution 69 

90.  The  execution — Nature  and  kinds   thereof 69 

91.  The  kinds  of  executions 70 

92.  What  property  subject  to  levy  and  sale 71 

93.  Partnership  property  levied  on,  how 73 

94.  When  liens  of  a  judgment  attach  to  lands 74 

95.  Lien  of  judgment  of   supreme  court — Lien  of  judgment   of  the 

common  pleas  court  in  cases  removed  to  supreme  court.  ...  70 

96.  Lien   of   transcripts    of   justices   and    mayors   by    filing   of    tran- 

scripts with  the   clerk   of  common   pleas 77 

97.  The  lien  of  such  judgment   77 

98.  Executions  upon  transcripts  of  judgments  of  justices  filed  by  the 

clerk  of  the  courts  of  common  pleas,  and  sales  thereunder.  7S 

99.  When  a  judgment  execution  becomes  dormant  and  ceases  to  be  a 

lien     78 

100.  The  writ  of  execution;  its  command,  and  how  sales  made  there- 

under— Execution  operates  against  a  partnership,  how....  79 

101.  In  what  cases  no  preference  given  to  execution 80 

102.  Goods  and  chattels  to  be  first  taken;  for  want  thereof,  lands  to 

be    levied    upon 81 


X  TABLE   OF    CONTENTS. 

SECTION  PAGE 

103.  Lands  must  be  appraised  by  freeholders  before  sale 81 

104.  Appraisers  can  not  be  purchasers 82 

105.  The  appraisement  must  be  made  upon  actual  view 82 

106.  Parol   evidence  may   be   introduced    to   show   mistake    in   an   ap- 

praisement and  the  appraisement  may  be  set  aside,  when .  .  82 

107.  What  must  be  included  in  the  appraisement 84 

108.  When  real  estate  may  be  sold  without  valuation 85 

109.  The  lien  of  a  judgment  restricted  to  two-thirds  of  the  appraised 

value  of  the  lands  levied  on 85 

110.  Lands  can  not  be  sold  for  less  than  two-thirds  of  the  appraise- 

ment—Except as  to  enforcement  of  a  junior  lien — Court 
may  determine  minimum  amount  for  which  real  estate 
may    be    sold 86 

111.  Persons  occupying  trust  relations  can  not  bid  at  their  own  sales.. 86 

112.  Purchasers  making  unsatisfactory  bid  to  pay  additional  sum  to 

satisfy  costs  and  allowances 87 

113.  Requirement  as  to  advertisement  of  sale  cf  land  under  order  of 

court — Requirement  as  to  description  or  location  of  property     87 

114.  Requirements  as  to  publication  of  sale  of  real  estate S8 

115.  Publication   of    notice   of    sale    in    newspapers   other    than    those 

printed   in   the   English   language 80 

116.  The  return  of  the  writ  by  the  sheriff"  and  the  record  thereof.  ...  90 

117.  Purchaser  failing  to  pay  punished  for  contempt 90 

118.  Confirmation   of   sale — Order   for   deed — Officer   may   retain    pur- 

chase money   until   sale  confirmed 01 

119.  Right  of  judgment  debtor  to   redeem  at  any  time  prior  to  con- 

firmation       92 

120.  When  master   commissioner  may   convey   real   estate 92 

121.  When  sheriff  may  act  as  and  for  master  commissioner 93 

122.  The  recitals   required   in  a  deed  of  a  sheriff  or  master  commis- 

sioner       93 

123.  The  effect  of  a  deed  made  by  a  sheriff  or  master  commissioner.  .  94 

124.  Printer's  fee  for  publication  of  sale  may  be  required  in  advance  04 

125.  Where   sales    of    real    estate    are    required    to    take    place — Alias 

execution   against   lands,    issued,    when 95 

126.  Proceedings  when  creditors  direct   separate  levies  to  be  made  on 

separate    parcels   of    land 93 

127.  Successor  to  sheriff  may  make  deeds  for  lands  sold  by  predecessor  96 
12S.  Ki^hts  of  party,  when  property  not  subject  to  execution  is  sold.  .  96 
120.      Relief  of  officer  who  levies  upon  and  sells  wrong  property  in  good 

faith    07 

130.      Remedy  when  one  of  tl -sureties   pays  for  such   property....      07 

1.". I.      When  judgment   loses  preference  as  a  lien — Lien  of  supreme  and 

circuit    court    judgments — How   Long   to   continue 97 

132.  When    new    appraisement     for    sale    of    real    estate    on    execution 

may  he  ma  de 08 

133.  New  appraisement    and   terms  of  sale  of  mortgaged  premises....      0!) 

134.  When  execution    to  !*•   returned 00 


TABLE   OP    CONTENTS.  XI 

PAGE 
SECTION 

135.     How  judgment  against  principal  and  surety  entered— Execution 
in  such  case 

136  Fee  of  appraisers  of  real  estate— Penalty  for  neglecting  to  serve 

•     ,.  100 

as  an  appraiser 

137  Execution  may  issue  to  another  county  and  may  he  returned  by 

'     '  .,  101 

mail    

138.  The    execution    docket    and    what    it    should    contain— The    index 

thereto   1,H 

139.  Proceedings  when  order  of  sale  issued  in  case  not  on  trial  docket   102 

140.  Failure  of  sheriff  to  perform  duties  required  in  connection  with 

sale  of  real  estate 102 


FORMS. 


Peocedube   where   Real    Estate   is    Sold   by   Execution    Issued   on    a 

Judgment  in   a  Civil  Action. 

PAGE 
NO. 

1.  The  petition — Cognovit  l03 

2.  The  answer  in  cognovit 

3.  The  judgment  by  confession 105 

4.  The  execution  issued  in  the  above  case 105 

5      Sheriff's  proceeding  under  the  writ  of  execution 1°» 

*  i  nt* 

6.  The  precipe   for  order  of   sale 

7.  The  order  of  sale  directed  by  the  clerk  to  the  sheriff 106 

8.  The  appraisement  of  real  estate  under  the  writ 107 

9.  The  proof  of  publication  and  notice  of  sale 107 

10.  Notice  of  sheriff's  sale  under  the  vendi 10S 

1 1.  Sheriff's  return  of  said  writ ■  •    108 

12.  The  order  of  the  court  approving  and  confirming  sale  by   sheriff 

and  ordering  deed • 

i3.     Sheriff's  deed  on  sale  ofreal  estate  under  an  execution 110,   111 


Proceedings  for  Sale  of  Real  Estate  where  Judgment  ra  Entered  in 
One  County  and  Execution  is  Sent  to  Another. 

14      The  petition  on  which  judgment  is  entered 

112 

15.  The  precipe 

16.  The   summons    

17.  The  sheriff's  return  of  summons I13 

IS.     Default   judgment    on   the   petition 

10.  Execution   issued  to   the  sheriff 

20.  Sheriff's  return  of  the  execution 

21.  Execution  issue'1  to  the  sheriff  of  another  county • I14 

22.  Sheriff's  return  of  his  proceedings  under  the  writ  of  execution.    .    115 


Xll  TABLE   OF    COKTENTS. 


Proceedings   to   Set  Aside  Fraudulent   Deed   and   for   Sale   of  Real 

Estate   to   Satisfy   Judgment,    and    Marshaling    Liens, 
no.  PAGE 

23.  The  petition  in  such  case 116 

24.  The  summons  and  the  sheriff's  order  of  service  of  same 117 

of  same  117 

25.  The  answer 118 

26.  The  answer  and  cross-petition  of  another  defendant 119 

27.  Decree  setting  aside  deed  and  ordering  sale  of  real  estate 120 

28.  The  order  of  sale  from  the  clerk  directed  to  the  sheriff 121 

29.  Proof  of  publication  and  notice  of  sale 122 

30.  Sheriff's  sale  of  real  estate 122 

31.  The  sheriff's  return  of   the   sale 123 

32.  Motion  to  confirm  sale  and  apportion  costs 124 

33.  Order  of  the  court  confirming  sale  and  ordering  deed 124 

34.  Sheriff's  deed  in  such  case 125 

35.  Petition  for  sale  of  real  estate  under  levy  made  under  a  foreign 

execution 127 

36.  Summons  in  such  case  and  the  sheriff's  return 128 

37.  Summons  to  another  county  and  the  sheriff's  return  thereof 129 

38.  Answer  and  cross-petition  setting  up  a  life  estate  on  real  estate.  .    129 

39.  Answer  of  judgment  debtor — General  denial 130 

40.  Answer  of  a  mortgage  lienholder  setting  up  mortgage 130 

41.  Entry  finding  the  issues  in  favor  of  plaintiff  and  ordering  sale  of 

real    estate 131 

42.  Order  of  sale  from  the  clerk   to  the   sheriff 132 

43.  The  proof  of  publication 133 

44.  Legal  notice  of  sheriff's  sale 133 

45.  Sheriff's  return   of   his   sale. .  . 133 

46.  Confirmation  of  sale  and  order  for  deed  and  distribution 134 

47.  Sheriff's  deed  in  such  case 135 


CHAPTER  III. 

Sale  of  Real  Estate  Under  Writ  of  Attachment, 
section  page 

141.  General   principles 139 

142.  An  auxiliary  remedy  allowed  only  after  an  action  is  begun — The 

purpose  of  the  writ 140 

143.  When  an  action  is  deemed  commenced 140 

144.  Cross  petitioner  is  entitled  to  the  writ 141 

145.  Jurisdiction — Entry  of   appearance — Service  cf   smmmons 142 

146.  Should   summons  be  issued  when  defendant  is  a  non-resident  of 

the  State?   142 

147.  When   service   may    1*>   had  by   publication   on   non-resident   de- 

fendants   in   attachment    proceedings 142 

148.  Affidavit  necessary  in  such  cases 143 


TABLE   OF    CONTENTS.  XI 11 
SECTION                                                                                                                                                          PAGE 

14!).     How  publication   is   made 143 

150.  When  service  is  complete  and  how  proven 143 

151.  When  personal  service  may  be  had  out  of  the  State 143 

152.  Grounds  for  the  attachment 144 

153.  When  the  defendant  is  a  foreign  corporation 145 

154.  When  a  defendant  is  a  non-resident  of  the  State 145 

155.  Has  absconded  with  intent  to  defraud  his  creditors 147 

156.  Fraudulent    disposition   of   property 148 

157.  When  the  obligation  has  been  fraudulently  or  criminally  incurred  14M 

158.  Requisites  of  the  affidavit  in  attachment 150 

150.     Filing  of  the  affidavit  is  jurisdictional — The  grounds  of  the  at- 
tachment to  be  stated  in  the  affidavit  therefor 150 

100.  The  kind  of  actions  in  which  the  writ  of  attachment  may  issue. .  151 

101.  Bond  required  before  writ  is  issued 152 

102.  The  order  of  attachment,  its  command  and  to  whom  directed.  .  .  153 

103.  Attachment  orders  may  issue  to   different  counties 153 

104.  When  attachment  orders  are  returnable 153 

165.     Order  in  which  several  attachment  orders  executed 153 

100.     The  manner  in  which  the  order  of  attachment  is  executed 154 

167.     When   property   attached   may  be   delivered   to   the   person  with 

whom    found 154 

16S.     Several  attachments  may  be  made  by  the  same  officer 15  4 

109.     How  subsequent  attachments  may  be  made 155 

170.  Officers'  return  of  the  writ  and  the  time  when  the  property  is 

bound     155 

171.  How  an  attachment  may  be  discharged  and  bond  for  same — Bond 

where  action  is  brought  for  causing  death 155 

172.  Undertaking  may  be  executed  in  vacation 155 

173.  Effect  of  judgment  for  defendant  in  attachment 156 

174.  Proceedings  after  judgment  for  plaintiff 150 

175.  When  questions  of  priority  of   several   attachments  may  be  re- 

ferred     15G 

170.     Death  of  defendant  does  not  end  attachment  proceedings 156 

177.  Cases    in    which    plaintiff    may    be    required    to    give    additional 

security 157 

178.  Attachment  discharged  by  motion  for  that  purpose,  and  evidence 

in    such    cases 157 

170.     Proceedings  in  error  to  reverse,  vacate  or  modify  order  discharg- 
ing   attachment 157 

180.  Error    proceeding    to    reverse    order    discharging    attachment — 

Bond  in  such  cases 158 

181.  When  administrator  or  executor  may  file  such  petition  in  error.  158 

182.  An  attachment  may  be  had  before  debt  is  due — Grounds  for  such 

attachment    150 

183.  Who  may  grant  the  affidavit  therefor 150 

184.  Action  to  be  dismissed  if  writ  is  refused 150 

185.  Order  must  specify  amount  for  which  writ  is  allowed 150 

180.     Bond  required  in  such  cases 100 

187.     Such  actions  to  be  continued  until  the  claim  is  due 160 


XIV  TABLE    OP    CONTENTS. 

SECTION  PAGE 

1SS.     How  far  other  provisions  of  attachment  law  applicable 160 

189.     How  to  proceed  before  a  justice  of  the  peace  when  defendant  has 

no  personal  property,  but  owns  real  estate 160 


FORMS. 


Procedure  in  Sals'  of  Real  Estate  by  Order  of  Court  in  Attachment 

Proceedings. 

no.  PAGE 

48.  The  petition  in  such  cases 162 

49.  The  affidavit   for   attachment 161 

50.  The  bond  required  where  defendant  is  not  a  foreign  corporation 

or  a   non-resident 165 

51.  The  order  of  attachment  issued  by  the  clerk  to  the  sheriff 165 

52.  The  sheriif's  return  of  the  order  of  attachment  and  the  appraise- 

ment thereunder 166 

53.  Affidavit  for  service  by  publication   upon  non-resident  defendants 

in  attachment  of  real  estate 166 

54.  Proof  of  publication  of  notice  for  non-resident  defendant  and  the 

legal    notice 167 

55.  Finding  and  approval   of  the  court   as  to  the  correctness  of  the 

service  by  publication 168 

56.  Judgment  of  the  court  and  order  of  sale  of  attached  property  as 

upon    execution 168 

57.  Motion   of   defendant  asking  to   set   aside  judgment  and  order  of 

vale     16S 

58.  Order  of  court  sustaining  motion  and  granting  defendant  leave  to 

answer  160 

59.  Answer  of  defendant  to  the  petition  of  plaintiff  in  attachment.  .  .    169 

60.  Reply  of  plaintiff  to  answer  of  defendant 170 

61.  Verdict  of  jury  on  trial  of  the  issues  in  attachment  proceedings.  .    171 

62.  Motion  of  defendant  to  vacate  and  set  aside  verdict  of  jury  and 

for  new  trial  in  attachment 171 

63.  Judgments  and  order  of  the  court  overruling  motion  for  new  trial 

and  order  of  sale 172 

04.     Order  of  sale  in  attachment  proceedings  issued  by  the  clerk  to  the 

sheriff    I":.' 

65.  Sheriff's  return  of  his  proceedings  under  the  order  of  sale 173 

66.  Proof  of  publication  of  sheriff's  sale  and  legal  notice  of  such  sale  171 

f'i7.      Appraisement   of   real   estate   and  oath   of   appraisers 17  1 

(is.      Entry    confirming    sale,    ordering    distribution    and    the   execution 

and  delivery  of  a  deed  to  the  purchaser  at  sheriff's  sale  of 

attached  properly 175 

69.     Sheriff's  deed   for   real   estate  sold  by  him  under  attachment  pro- 
ceedings      176 


TABIJE    OF    CONTENTS.  XV 

CHAPTER  IV. 
Sale  of  Entailed  Estates  i?y  Order  of  Court. 

PAfiH 
SECTION 

190.  General    discussion — Entailed  estates   to    pass   to   issue   of   first 

donee    

1!»1.  The  constitutionality  of  disentailing  acts 1  79 

192.  Where  the  action  must  be  brought 1S0 

193.  Who  may  obtain  the  sale  of  entailed  and  other  kindred  estates.  .    ISO 

194.  Such  sale  must  be  for  the  best  interest  of  the  parties 181 

195.  Requisites  of   petition  for   sale  of  entailed   estate,   and  who   are 

to  be  made  parties  defendant  in  such  action 182 

190.  Procedure    incidental    to    the   action 18,{ 

197.  Guardian  ad  litem  should  be  appointed  for  minor  defendants 184 

198.  Order  for  sale  and  effect  of  sale — Appointment  of  trustees 184 

199.  A  sale  may  be  had  by  consent  of  parties 1S;) 

200.  Report  and  confirmation  of  sale  and   deed 185 

201.  How  proceeds  of  such  sale  are  to  be  disposed  of 185 

202.  The  manner  of  investing  funds  arising  from  the  sale  of  entailed 

estates    

203.  Further  investment  of  proceeds 

204.  Who  to  receive  income  and  pay  taxes  and  expenses 186 

205.  The  manner  in  which  said  estates  may  be  leased 187 


NO 

70. 
71 


74 
75 

76 


FORMS. 

Forms  of  Procedure  in  Sale  of  Entailed  Estates. 

page 

Petition  for  sale  of  an  entailed  estate.  ,., 1SS 

Waiver  of  summons  and  entry  of  appearance 1;)0 

72       Finding  and   decree  ordering  sale  of  property   and  appointing  ap- 

•  190 

praisers   

73.     Order   of   sale 91 

The  sheriffs  return  of  his  proceedings  under  the  writ 192 


75.     The  order  for  appraisement. 


The  oath  of  appraisers  and  the  appraisement 193 

77.  The  order  of  the  court  appointing  trustees  and  fixing  bond 193 

78.  The  bond  of  trustees 

79.  The  official  oath  of  trustees 1!14 

104 
SO.     The  answer  of  trustees 

81      The  order  confirming  appraisement  and   sale,  and  order  for  deed 
and  distribution  of  proceeds 

82.  The  sheriff's  deed  in  sale  of  entailed  estates 1!H> 

83.  The  order  approving  proceedings  and  ordering  sheriff  to  turn  over 

money  to  trustees 

84.  Another  form  for  petition  in  the  sale  of  entailed  estates 198 


Xvi  TABLE   OF    CONTENTS. 

NO.  PAGE 

85      Answer  under  said  petition 200 

8G.  Another  form  of  decree  and  order  of  sale  of  the  premises,   and 

appointment  of  trustees 200 

87.  Another  form  for  order  of  sale  and  report  of  sale 201 

88.  The  acceptance  of  appointment 203 

8!).     The  bond  of   trustee 203 

90.  The  entry  confirming  sale  and  ordering  trustee  to  purchase  other 

real  estate 204 

91.  The  report  of  trustee  as  to  investment 204 

92.  The  order  of  court  approving  investment 205 

93.  Another  form  for  a  petition  by  tenant  for  life  for  sale  of  estate.  .  200 


CHAPTER  V. 
Sale  of  Real  Estate  by  an  Administrator  to  Pay  Decedent's  Debts. 

section  PAGE 

206.  Nature  of  the  procedure  and  care  required  of  counsel  conduct- 

ing  the    case "09 

207.  In  what  court  and  how  the  application  shall  be  made 211 

208.  Determination    of    equities    and    priorities — Distribution — Order 

for   a  release  of  liens — Fees — Applicable   to  guardians,   as- 
signees and  other  trustees 213 

209.  When  an  executor  or  administrator  to  apply  for  a  sale  of  real 

estate  to   pay   debts 213 

210.  Real  estate  may  be   sold  by  executor   or   administrator  for   the 

payment    of    legacies 213 

211.  The  statute  of  limitations  as  to  such  actions 214 

212.  What  interest  and  estates  in   real  estate  may  be   sold — Sale  of 

equitable    interests 215 

213.  Real   estate  fraudulently  conveyed  liable   to  sale 210 

21  I.  How  executor  or  administrator  to  get  possession  of  land  fraudu- 
lently conveyed — How  such  conveyance  avoided — Where 
>iich   action   must   be  brought 217 

215.      What    are    debts    within    the    terms    of    the    statute    authorizing 

such    sale "*° 

210.     Administrator  ilc  bonis  von  to  complete  proceedings  begun  by  his 

predecessor   ^'■^ 

217.     What  the  petition  for  such  sale  of  real  estate  must  contain  and 

who  should  Ik-  made  parties  to  the  action 219 

21S.     When  assets  of  decedent  will  be  marshaled  in  conformity  to  will  221 

219.  Sale  prevented,   how 221 

220.  Procedure   incidental    to  the   action 222 

221.  Service  of  summons  and  waiver — Legal  guardians  may  consent — 

i  >t  her  proceedings 2-3 

222.  When  guardians  ad  litem  to  be  appointed — They  have  no  power 

to  assent ™-3 


TABLE   OF    CONTENTS.  XV11 

SECTION  PAGB 

223.  When  court  orders  real  estate  to  be  sold — Terms  of  sale,  conduct 

of   trial,  if  contested 223 

224.  Heir  by  private  sale  of  real  estate  will  not  defeat  right  of  per- 

sonal representative  to  sell 224 

225.  The  estate  of  the  heir  in  the  lands  set  off  to  the  widow  to  be  sold  225 
220.     The  whole  of  the  real  estate  to  be  sold  when  a  partial  sale  will 

injure  the  residue 225 

227.  When  further  bond  will  be  required  of  the  administrator  or  the 

executor 225 

228.  Awarding  of  costs  where  there  are  objections  to  the  sale 225 

220.     Appraisement  when  no  dower  is  assigned 220 

230.  Appraisement  of  the  real  estate — Duty  of  appraisers  as  to  dower 

and  homestead — When  lands  in  two  or  more  counties 220 

231.  Dower  especially  assigned  to  be  a  charge  on  the  land 228 

232.  Vacancies  in  appraisers,  how  filled 22S 

233.  Oath  of  appraisers,  certificate  thereof — View  and  Return — Com- 

pensation  of   appraisers 229 

234.  The  notice  of  sale  by  the  executor  or  administrator 229 

235.  Notice   of   sale    in   German   or    Bohemian   newspaper — Error   in 

translation  to  be  disregarded 229 

230.     For   what  amount   the   lands   may   be   sold   under   appraisement 

or  order  to  sell  at  fixed  price 230 

237.  When  sale  of  such  real  estate  to  be  at  public  or  private  sale — 

Sale  in   parcels 230 

238.  Return   of   sale    to   court — Confirmation — Acceptance   of   cash — 

Sale  of  notes  and  distribution 231 

239.  Executor's  or  administrator's  deed  evidence  of  the  validity  of  the 

sale — What  estate  shall  pass  by  it 231 

240.  How  money  arising  from  sale  of  land  to  be  applied 232 

241.  Where  sale  is  authorized  by  will,  no  order  of  sale  required.  .  .  .   232 

242.  When  foreign  executor  or  administrator  may  be  authorized  to 

sell   real   estate 232 

243.  When  foreign  executor  or  administrator  to  give  bond 233 

244.  Foreign  executor  or  administrator  to   give  further  bond  to  ac- 

count for  surplus,  when 233 


FORMS. 


Procedure  in  Sale  of  Real  Estate  by  an  Administrator  to  Pay 

Decedent's  Debts. 

no.  PAGE 

94.  The  petition  when  the  action  is   in  the  court  of  common  pleas. 

and   when    the   action   also   seeks   to    sell   land   of   decedent, 
conveyed  by   him   in   fraud  of  creditors 234 

95.  The  precipe 235 

90.     The  summons  for  defendants  in  the  county  where  the  action  is 

brought     236 


^Viii  TABLE    OF    CONTENTS. 

NO.  PAGR 

97.  The  sheriff's  return  of  summons 236 

98.  Summons  for   defendants  living   in   a  county   other  than  where 

the  petition  is  filed 236 

99.  The  sheriff's  return  of  his  proceedings  under  said  summons....   237 

100.  The  answer  and  cross-petition  of  a  defendant  setting  up  a  build- 

ing and  loan  mortgage 237 

101.  Waiver  of  summons  and  entry  of  appearance 239 

102.  Another  form  of  answer   in  such  case 240 

103.  Entry   appointing  guardian  ad   litem 240 

104.  Answer  of  guardian  ad  litem 241 

105.  Decree  setting  aside  fraudulent  conveyance  and  ordering  sale  of 

real    estate 24 1 

106.  The  order  of  appraisement 243 

107.  Administrator's  return  of  his  proceedings  under  said  order....  244 

108.  The  oath  of  appraisers 244 

109.  Entry  confirming  the  appraisement  and  order  of  sale 244 

110.  The  order  of  sale  directed  from  the  clerk  to  the  administrator.  .  245 

111.  The  administrator's  publication  of  sale  of  real  estate 240 

112.  The  proof  of  said  publication 246 

113.  The  administrator's  return  of  his  proceedings  under   said  order 

of  sale 246 

114.  Confirmation  of  sale — Order  for  deed  and  distribution 247 

115.  Form  for  the  administrator's  deed  in  such  case 247 


Procedure  in  the  Probate  Court  where  Real  Estate  is  Sold  by  ax 
Administrator    at   Private    Sale   Subject   to    Dower. 

116.  The    petition    in    such    case 251 

117.  Answer  of  widow  asking  an  assignment  of  dower   in   the  estate 

sought  to  be  sold 251 

118.  The  precipe'  for  summons 252 

119.  Summons  on  petition  to  sell  real  estate 252 

12(i.     The    sheriff's    return   of   summons 252 

121.  Decree  and  order  of  sale  of  real   estate  subject   to  dower 253 

122.  The    order   of   assignment    of   dower   and    appraisement    of    real 

<-state     253 

123.  The  administratrix's  return  of  her  proceedings  under  order....  254 

124.  The  oath  of  appraisers 254 

125.  The  appraisers'  return  of  their  proceedings 254 

126.  Order  of  the  court   confirming  appraisement 255 

127.  Form  for  additional  bond  and  sale  of  real  estate  subject  to  dower  255 

128.  Order    to    soil    real    estate    at    private    sale,    for    cash,    subject    to 

dower — Approval  of  additional  bond •  -56 

129.  The  order  of  -ale  1..  the  administratrix,  at   private  sale,  for  cash. 

and    subject    1<>    dow  r 256 

130.  The  administratrix's   report   of  -ale   under   said  writ 257 

131.  Entry  confirming  sale  and  ordering  deed 257 


TABLE   OF    CONTENTS.  &1X 

NO.  PA<ii: 

132.  Administratrix's  deed  for  real  estate  sold  at  private  sale  by  the 

probate  court,  subject  to  widow's  dower 258 

133.  Order  for  sale  of   real   estate   sold  by  order  of  court  at   public 

auctkm     25!  I 

134.  Order  of  sale  issued  to  the  administrator 2(i<i 

135.  The   administrator's   return   of   his  proceedings  under  the  order 

of  sale 260 

136.  Tlie  publication  of  notice  of  sale  of  real  estate 2<il 

137.  Proof  of  publication  of  the  notice 261 

138.  Confirmation  of  administrator's  sale  and  order  for  deed 261 

139.  Administrator's  deed  in  sale  of  real  estate  by  probate  court,  at 

public  auction,  free  of   dower 202 

140.  Answer  of  widow  consenting  to  sale  and  waiving  assignment  of 

dower  in  real  estate  by  metes  and  bounds,  and  asking  that 
the  real  estate  be  sold  free  of  her  dower,  and  that  she  be 
endowed  out  of   proceeds  of   sale 204 

141.  The  order  of  sale  where  real  estate  is  sold  free  of  dower  of  widow  204 

142.  Application    for   the   appointment  of  guardian   ad   litem,   and    a 

trustee  to  answer  for  an  insane  defendant 265 

143.  Order  of  the  court  appointing  guardian  ad  litem  and  a  trustee 

for    an    insane    defendant 2(30 

144.  Answer  of  guardian  ad  litem  for  infant  defendant 2(iG 

145.  Answer  of  a  trustee  for  an  insane  person 266 

140.     Application  to  have  the  real  estate  described  in  the  petition  of 

an  administrator  to  sell   lands  to  pay  debts,  surveyed  and 

platted 2,:" 

147.  The  affidavit  in  support  of  the  above  application 207 

148.  Order  of  the  court  authorizing  the  real   estate  described  in   the 

petition  to  be  surveyed  and  platted,  and  the  order  of  the 
court  confirming  the  same 268 

149.  Order  of  the  court  on  the  hearing  for  assignment  of  homestead 

and  dower  and  order  of  appraisement,  subject  to  dower 
and  homestead 269 

150.  Order  from  the  court   to  the   plaintiff  for  assignment  of   home- 

stead and  dower  and  appraisement 270 

151.  The  administrator's  return  of   his   proceedings   under   the   above 

order    - '  ^ 

152.  The  oath   of   appraisers 270 

153.  The  return  of  the  appraisers  assigning  homestead  and  dower  and 

appraising  real  estate  subject  to  homestead  and  dower...,.    271 

154.  Order  of  the  court  dismissing  petition  of  an  administrator  at 

his  costs • 271 

155.  Affidavit  to  obtain  service  upon  defendants  by   publication 272 

1 5*1.     Notice   to   parties   by   publication 272 

157.  The  certificate  of  a  justice  of  the  peace,  appointing  appraisers  to 

serve  instead  of  appraisers  appointed  by  the  court 273 

158.  Motion    asking  that   the    appraisement   and    sale    of    real    estate 

described  in  the  petition  be  vacated  and  set  aside 273 


XX 11  TABLE    OF    CONTENTS. 

SECTIOS  PAGE 

204.      Who  may  make  an  assignment  for  tlie  benefit  of  creditors — The 

bonds  required  and  their  conditions 313 

2(53.     The  court  must  appoint  an  assignee  in  case  of  the  failure  of  an 

assignee  to  qualify    313 

206.      In  case  cf  resignation  the  court  to  appoint  assignee 314 

2ti7.     Under   what  circumstances   creditors   may   select  an  assignee  or 

trustee 314 

2<iS.     The  court  may  remove  assignee,  when — Ell'cet  of  new   bond  in  such 

case     315 

20!>.     The  appointment  of  a  trustee  in  place  of  an  assignee  or  trustee 

— His   powers  and   duties 316 

270.  The  appointment  of  a  trustee  to  act  in  the  place  of  an  assignee.  .    31(i 

271.  Notice  required  in  case  a  trustee  is  appointed  to  act  for  and  in 

place   of   an   assignee 317 

272.  The  inventory  and  appraisement  of  real  estate  assigned,  and  duty 

of  assignee  where  real  estate  is  situated  in  another  county.    317 
27o.     What  property  exempt  from  the  assignment — The  homestead  ex- 
emption        317 

274.  The  real  estate  must  be  converted  into  money 318 

275.  In  what  case,  no  petition  need  be  filed  for  sale  of  real  estate.  .  .  .    318 
270.     In  what  court  the  action  must  be  brought 318 

277.  The  procedure  in  sale  of  real  estate  by  an  assignee 31!) 

278.  Notice  of  time  and  place  of  sale  of  real  estate,  and  amount  for 

which  the  same  can  be  sold 320 

27!).     Manner  in  which  real  estate  may  be  sold  at  public  auction — En- 
forcement  of    cunt)  acts 320 

280.  Manner  in  which  real  estate  may  be  sold  at  private  sale 321 

281.  When  the  court  may  fix  the  amount  at  which  the  real  estate  may 

be  sold   321 

282.  Procedure  as  to  wife's  dower 321 

283.  Procedure    where    wife    joins    in    mortgage,    or    mortgage    is    for 

purchase    money , 322 

284.  Manner  of  payment  of  liens — Questions  of  dower — Homestead — Com 

pletion    cf    real    contracts    of    assignor    and    application    of 

proceeds   of   sale 322 

2S.").     The  order   to   release  mortgages  or   liens  in   recorder's  office.  .  .  .  323 

286.  Procedure  when  town  lots  are  to  lx>  laid  out 324 

287.  Confirmation  of  sale  and  order  for  deed 324 


Foil  MS. 


Procedure  bt  Which  Real  Estate  is  Sold  isy  an  Assignee  for  Benefit 

of  Creditors. 

\m.  PACE 

200.  The  deed  of  assignment 326 

201.  Form  for  accept  a  nee  of  trust 328 

202.  The  petition  for  sale  of  real  estate  of  an  assignee  for  the  ben- 

(  lit   of  creditors   ,  .    328 


TABLE    OK    CONTENTS.  XX1U 

NO.  PAGE 

203.  The   precipe   for  summons 329 

204.  Answer  of   wife   or   assignor    .  .  320 

205.  Answer  of  an  assignor 320 

20(i.  '1  lie  summons  for  defendant  in  sale  of  real  estate  by  an  assignee 

for  the  benefit  of  creditors 320 

207.     The  sheriff's  return  of  liis  proceedings  under  said  writ 330 

20S.  Answer  and  cross-petition  of  a  defendant  setting  up  notes  secured 

by  mortgage   330 

200.      Cross-petition  of  a  trustee  setting  up  mortgage  lien 331 

210.  Decree  and  order  of  sale 332 

211.  Affidavit  for  authority  to  sell  real  estate  at  private  sale 333 

212.  Order  for  sale  of  real  estate  at  private  sale 333 

213.  Order  of  sale  from  the  probate  court  to  the  assignee 333 

214.  The  assignee's  return  of  his  proceedings  under  the  order  of  sale.  334 

215.  Assignee  report  of  sale 334 

216.  Confirmation  of  private  sale  of  assignee 334 

217.  Form  for  deed  of  assignee  in  sale  of  real  estate  at  private  sale.  .  335 

218.  Order  of  assignee  to  sell  at  public  auction 336 

219.  Assignee's  report  of  his  proceedings  under  the  writ 337 

220.  Legal  notice  of  sale  and  proof  of  publication 337 

221.  Decree  and  order  of  court  confirming  sale 337 

222.  Form  of  assignee's  deed  at  public  auction 338 

CHAPTEPv   VIII. 

Sale  of  Real  Estate  by  a  Receiver, 
section  page 

288.  The  source  of  the  receiver's  authority  to  .-ell  real  estate 340 

289.  The  statutory  powers  of  a  receiver 341 

290.  The  statutory  instances  in  which  a  receiver  may  be  appointed.  .    341 

291.  The  manner  in  which  a  receiver  may  l>e  appointed  and  the  pro- 

cedure in  such  case . 342 


FORMS. 
The  Procedure  by  Which  Real  Estate  ra  Sold  by  a  Receiver. 

NO.  PAGE 

223.  The  petition  in  the  action  in  which  a  receiver  is  appointed 343 

224.  The  precipe  for  a  summons .". 4«'. 

225.  The  summons 3415 

226.  The  sheriff's  return  of  the  writ 34l> 

227.  The  motion  asking  for  the  appointment  of  a   receiver 347 

228.  The  notice  to  the  defendant  of  the  time  and  place  asking  for  the 

appointment  of  a  receiver 347 

229.  The  order  of  the  court  appointing  a   receiver 347 

230.  The  order  of  the  court  appointing  counsel   to  advise  receiver.  ...    318 
255.     The  deed  from  the  trustees  to  the  purchaser  at  trustee's  sale  of 

real  ?state  in  bankruptcy   365 


XXIV  TABLE    OP    CONTENTS. 

NO.  PAGE 

231.  Motion  asking  the  court's  instruction  as  to  publication  of  notice 

to  creditors 348 

232.  Order  of  the  court  directing  the  manner  and  kind  of  notice  to  be 

published  to  creditors    349 

233.  llie  notice  so  published 34!) 

234.  The  proof  of  the  publication 350 

235.  The  inventory  filed  in  the  action  by  the  receiver 350 

230.     Application  for  the  appointment  of  appraisers  and  for  the  order 

to  sell  real  estate 350 

237.  The  receiver's  report  of  appraisement 351 

23S.  The  appraiser's  oath  and  their  report  of  appraisement 351 

230.  The  application  for  confirmation  of  appraisement 352 

240.  The  confirmation  of  appraisement  and  order  of  sale 352 

241.  Receiver's  report  of  sale  of  real  estate 353 

242.  Legal  notice  of  receiver's  sale 354 

243.  The  proof  of  publication 354 

244.  The  order  of  the  court  confirming  sale 355 

245.  The  deed  from  the  receiver  to  the  purchaser 355 


CHAPTER  IX. 
Sale  of  Real  Estate  by  Trustee  in  Bankruptcy. 

section  page 

292.  The  source  of  the  trustee's  authority  to  sell 358 

293.  The  appraisal  of  the  real  estate 358 

294.  The  manner  in  which  the  sale  is  conducted 358 


FORMS. 


Procedure  by  Which  Trustee  in  Bankruptcy  Sells  Real  Estate   at 

Private  Sale. 

N0-  PAGE 

240.     The  order  of  the  court  appointing  appraisers 360 

247.  The  oath  of  appraisers,  the  appraisement  and  return  of  the  ap- 

praisers     3,;1 

248.  The  petition  to  sell  real  estate  at  private  sale  subject  to  incum- 

brances      3(jj 

249.  The  order  to  sell   real  estate  at   private  sale  subject   to   incum- 

brances   352 

250.  The  entry  confirming  such  sale 333 

251.  The  petition  for  sale  (if  real  estate  by  public  auction 303 

252.  The  order  of  the  court  authorizing  sale  at  public  auction 303 

253.  The  petition  for  sale  of  real  estate  at  public  auction  subject  to 

Hens   364 

254.  The  order  and  decree  of  the  eourt  authorizing  such   sale 304 


TABLE   OF    CONTENTS.  XXV 


CHAPTER  X. 

Sale  of  Real  Estate  Under  Partition  Proceedings, 
section  page 

295.  Nature  of  the  proceedings — Equitable  and  statutory 368 

296.  Amicable  partition   371 

297.  Partition  may  be  made  by  parol 372 

298.  Written  agreement  for  partition 373 

299.  One  tenant  cannot  effect  partition  by  deed  conveying  his  inter- 

est by  metes  and  bounds 373 

300.  Joint  tenancy  does  not  obtain  in  Ohio 374 

301.  Disputed  title  can  be  determined  by  partition 375 

302.  Will  may  be  construed — Course  of  descent  and  legality  of  bequest 

determined    in   partition 375 

303.  Partition  creates  no  new  title 377 

304.  Construction  of  partition  by  mutual  releases 378 

305.  Applicant  for  partition  must  be  in  actual  or  constructive  pos- 

session •, 3 1 9 

306.  Several  estates,  part  of  which  under  life  leases,  pa«t  of  which  not 

—Part  can  be  partitioned  and  part  not 380 

307.  Remainderman  or  reversioner  cannot  have  partition — Life  estate 

outstanding,  when 382 

308.  Title  of  demandant  must  be  alleged  and  proved 384 

309.  Who  may  have  partition 384 

310.  When    partition    can    not    be    had — Where    the    action    must    be 

brought    385 

311.  Who  may  file  petition  for  partition 386 

312.  The  order  for  partition 386 

313.  The  writ  of  partition 387 

314.  Commissioners  shall  make  partition,  how 387 

315.  How  partition  made  when  more  than  one  tract  to  be  partitioned.  388 

316.  Commissioners  to  appraise  land  when  they  cannot  divide  it — Elec- 

tion of  parties  to  take  at  appraisement 3S9 

317.  Terms  of  payment  when  estate  taken  by  party — Execution  of  con- 

veyances      39 1 

318.  Sale  of  the  estate  when  parties  do  not  elect  to  take  the  same.  .  .  .  392 

319.  How  such  sale  conducted  and  the  terms  thereof 392 

320.  Confirmation  of  sale  and  execution  of  conveyances 392 

321.  Distribution  cf  proceeds — Sheriff's  liability 392 

322.  Proceedings  when  the  estate  has  been  once  offered  and  not  sold.  .   395 

323.  When  successor  of  sheriff  who  made  sale  to  execute  conveyances.    395 

324.  When  widow  is  entitled  to  dower,  or  an  interest  is  subject  to  a 

life  estate    396 

325.  Commissioners  appointed  to  partition  the  estate  to  assign  dower.  397 

326.  Partition — Power  of  guardian  to  act  for  ward 398 

327.  Powers  of  foreign  guardian 399 

328.  Action  by  one  parcener  against  another  for  rents  and  profits.  .  .  .  399 

329.  Rents  and  crops  apportionment  in  case  of  sale 399 


XXVi  TABLE    OF    CONTENTS. 

SECTION  PAGE 

330.  Absence  of  seven  years,  presumption  as  to — Purchaser  entitled  to 

improvements,  when 400 

331.  Partition  of  property  belonging  to  religious  corporations 401 

332.  When  such  partition  can  be  made  and  effect  thereof 402 

333.  Costs  and  expenses  to  be  equitably  taxed  in  partition  proceedings  402 

334.  Certificate  from  court — Partition  and  deficiency  of  assets 403 

335.  Court  shall   order   proceeds  of    partition   proceedings   to  be   paid 

over  to  executor  or  administrator,  when 403 

330.     Partition  cannot  be  had  within. a  year  from  death  of  decedent, 

when    404 

337.  Advancement — Hotch-potch  in  partition 400 

338.  Advancement  by  an  intestate  to  he  considered  a  part  of  the  estate  400 
330.     When  the  advancement  is  greater  or  less  than  the  heir's  share..  .    407 

340.  When  the  advancement  is  wholly  real  or  personal  estate 40H 

341.  When  value  of  advancement  expressed  in  deed J0S 

342.  Judgments  in  partition  cannot  be  collaterally  assailed 400 

343.  Lien  against  co-tenant   attaches  to  share  set  off  to  him  in  sev- 

eralty by  partition 410 

344.  Rights  of  a  joint  owner  who  pays  his  portion  of  a  tax — Those  not 

paying  held  liable  as  if  partition  lrad  not  been  made — A  tax 
on  lands  sold  at  judicial  sale  to  be  paid  cut  of  proceeds 
of  sale — Part  owner  paying  tax  on  whole  tract  shall  have 
lien    ' 411 

345.  Purchasers  may  have  partition  as  in  other  cases 412 

346.  Appeal  and  error  in  partition 412 


FORMS. 


Procedure  in  Partition  Proceedings, 

no.  page 

250.     Petition   in   partition   and  to  quiet   title 415 

257.  The  precipe 41!) 

258.  The  summons 41!) 

259.  Sheriff's  return  of  service  of  summons 420 

260.  Answer  of  guardian  for  an  infant 420 

261.  Waiver   of   summons   and   entry   of   appearance 420 

262.  Answer  of  widow  asking  to  be  endowed  nut  of  proceeds  of  sale.    421 

263.  Motion  for  appointment  of  guardian  ad  litem 422 

204.     Order  appointing  guardian  ad  litem '22 

265.     Answer  of  guardian  ad  Utem 42'' 

200.      Decree  of  partition    423 

267.     Writ  of  partition  directed  to  the  sheriff  by  the. clerk 421 

2fiS.     The  commissioners'  report 425 

269.  Sheriff's  return  of  his  proceedings  under  the  writ 425 

270.  Election  of  plaintiff  to  take  the  real  estate  al   the  appraisement.    420 

271.  Entry  confirming  sale,  order  of  deed  and  distribution 426 


TAIJU3    OF    CONTENTS.  XXVll 


PACE 


NO. 

272.     Sheriff's  deed  in  partition    427 

27:$.     Writ  of  partition  where  the  property  cannot  be  divided  and   ia 

BOld 4-S 

274.  The  sheriff's  return  of  Ids  proceedings  under  the  writ 42() 

275.  The  commissioners'  report  of  their  proceedings  under  the  writ.  .    42!) 

276.  Order  of  sale  in  partition — Legal  notice — Publication — Sheriff's 

return   430 

277.  Petition  for  partition,  when  advancements  have  been  made 431 

278.  Petition  in  partition — When  there  is  an  accounting  for  rents  and 

profits 432 

279.  Petition  for  equitable  partition  when  there  have  been  advance- 

ments     **3 

280.  Petition  for  partition  !>y  guardian 4:5r> 

281.  The  answer  in  partition 436 

282.  Cross-petition  of   defendant   setting  up   mortgage   claim    on   real 

estate  sought  to  be  partitioned 438 

283.  The  order  for  publication  for  unknown   heirs  or  devisees 439 

284.  Legal  notice  to  unknown  heirs 440 

285.  Legal  notice — Sale  of  real  estate  in  partition  by  the  sheriff 440 

28b\     Form  of  certificate  to  probate  court 441 

287.  Journal  entry  allowing  above  application 442 

288.  Certificate  under  previous  order 442 

289.  Motion  by  administrator  asking  for  a  fund  from  the  estate  to  pay 

debts  of  decedent 442 

290.  Entry  sustaining  above  motion   443 

291.  Proof  of  publication  in  partition  proceedings 443 

292.  Legal  notice  and  service  by  publication  in  partition  proceedings.  .    443 

293.  The  affidavit  for  service  by  publication  in  partition  proceedings.    444 

294.  Report  of  commissioners  assigning  dower  by  metes  and  bounds, 

and  awarding  partition  by  metes  and  bounds 444 

295.  Writ  of  dower  when  the  same  cannot  be  assigned  by  metes  and 

bounds  and  there  is  an  assignment  of  rents  and  profits.  .  .  .   444 


CHAPTER  XL 

Sale  of  Real  Estate  by  Religious  and  Other  Kindred  Societies. 

section  page 

347.     General  discussion   445 

?48.  Religious  society  may  petition  the  court  for  sale  of  real  estate 
used  for  cemetery  purposes — Notice  by  publication  to  be 
given — Procedure -,-'7 

349.  Tn  what  cases  certain  churches  or  church  societies  may  sell  lands.    -I  IS 

350.  The  kind  of  notice  given  in  such  case  and  the  order  of  the  court 

therein   448 

351.  Procedure  for  sale  of  real  estate  in  certain  eases  after  certain 

church  organizations  have  consolidated 449 


XSV111  x^rJLE   OF    CONTENTS. 

SECTION  .  PAGE 

352.  How  notice  of  the  pendency  of  the  petition  in  such  case  shall  be 

given    419 

353.  When  and  how  real  estate  of  certain  extinct  incorporated  reli- 

gious societies  may  be  sold 450 

354.  Duties   of   trustees   of  extinct   parishes   and   their   duties   as   to 

moneys  received  from  sale  of  real  estate 450 

355.  Who  are  to  be  made  parties  to  proceedings  for  the  sale  of  such 

feal  estate 451 

356.  Manner  of  sale  and  conveyance  of  real  estate  of  certain  consol- 

idated religious  societies — Who  must  be  defendants  in  such 
actions  451 

357.  Publication  of  notice  in  such  sales 452 

358.  Manner  in  which  churches  generally  may  sell,  exchange  or  en- 

cumber real  estate 452 

359.  Kind  of  notice  to  be  given  when  the  sale  of  church  property  is 

asked  of  the  court 453 

360.  All  sales,  mortgage  or  exchange  of  church  property,  sold  by  pro- 

ceeding in  court,  to  be  confirmed  by  court 453 

361.  When  real  estate  given  to  certain  charitable  uses  may  be  sold  by 

order  of  court — Procedure  in  such  cases 453 

362.  Necessary  parties  to  such  proceeding — Partition  of  church  prop- 

erty     454 


FORMS. 
Procedure  for  Sale,  Exchange  or  Encumbrance  of  Church  Property. 

no.  page 

296.  Petition  for  sale  or  exchange  of  church  properties 455 

297.  Legal  notice  and  proof  of  publication 457 

298.  Order  of  court  authorizing  sale  and  exchange  of  real  estate 458 

299.  Report  of  sale  and  exchange"  of  real  estate  by  church 459 

300.  Order   of   court   confirming  exchange   and   ordering   deeds   to   be 

made -400 

301.  Form  for  church  deed  in  exchange  of  real  estate 400 

302.  Petition  asking  for  sale  and  encumbrance  of  church  property.  .  .  .    462 

303.  Publication  of  notice  and  proof  of  same 463 

304.  Decree  of  court  authorizing  mortgage  of  part  and  sale  of  part  of 

real  estate  of  church 464 

305.  Confirmation  of  sale  and  mortgage  of  real  estate 465 

306.  Form  for  deed  in  such  instance 465 


TABLE   OF    CONTENTS.  XXIX 


CHAPTER  XII. 


The  Law  and  Procedure  en  Sale  of  Real  Estate  in"  Proceedings  to 

Foreclose  a  Mortgage. 
m:ction  page 

363.     The  execution  and  acknowledgment  of  a  mortgage 407 

304.     The  lien  of  a  mortgage  and  its  priority  over  other  liens 468 

3(i.">.     The  assignment  of  the  note  carries  with  it  the  mortgage  security.   40*) 
3ti0.     The  mortgagee's  remedies — Foreclosure,  ejectment  and  an  action 

on  the  note  for  a  personal  judgment 470 

3<!7.     Where  the  action  to  foreclose  a  mortgage  must  he  brought 470 

308.     The  action  to  foreclose  a  mortgage  and  for  a  personal  judgment.  .    471 

369.  The  action  when  one  not  a  party  to  the  transaction  assumes  the 

mortgage  and  agrees  to  pay  it 4  (  1 

370.  Mortgage  may  be  foreclosed  on  default  of  payment  of  one  of  a 

series  of  notes,  when 472 

371.  "What  courts  have  jurisdiction — Personal  representatives  and  as- 

signees of  mortgagor 4/2 

372.  A  receiver  may  be  appointed  to  take  charge  of  the  real  estate  in 

the  action  to  foreclose  a  mortgage,  when 47:! 

373.  New  appraisement  and  terms  of  sale  of  mortgaged  premises.  .  .  .   473 

374.  The  action  to  foreclose  a  mortgage  on  real  estate 474 


FORMS. 
Procedure  ln  Sale  of  Real  Estate  by  Foreclosure  of  Mortgage. 

NO.  PAnE 

307.  Petition  on  foreclosure  of  real  estate  mortgage 470 

308.  The  precipe   478 

309.  The  summons  in  such  action  and  the  sheriff's  return  of  the  same.   478 

310.  Motion  for  the  appointment  of  a  trustee  to  defend  for  an  insane 

person    4  <  9 

311.  Affidavit  in  proof  of  insanity  of  defendant 479 

312.  Order  appointing  trustee  to  defend  for  an  insane  person 479 

313.  Answer  of  trustee  for  insane  defendant 480 

314.  Decree  in  foreclosure    480 

315.  Order  of  sale  from  the  clerk  to  the  sheriff 481 

310.  The  appointment  of  appraisers  and  their  oath.' 482 

317.  Appraisers'  report    483 

318.  Proof  of  publication  of  notice  of  sale  of  real  estate 483 

319.  The  legal  notice  of  sale  of  real  estate 483 

320.  The  sheriff's  return  of  his  proceedings  in  sale  of  real  estate  in 

foreclosure  of  mortgage 484 

321.  Entry  confirming  sheriff's  sale  of  real  estate,  ordering  deed  and 

distributing  proceeds  of  sale 485 


XXX  TABLE  OF  CONTENTS. 

NO.  PAGE 

322.  Sheriff's  deed  of  real  estate  to  purchaser  thereof  in  foreclosure  of 

r<  al  estate  mortgage 480 

323.  Petition  for  foreclosure  of  mortgage  where  a  grantee  in  deed  as- 

sumes the  mortgage  and  agrees  to  pay  it 487 

324.  Petition  for  foreclosure  of  mortgage  where  successive  grantees  in 

subsequent  deed  assume  the  mortgage  and  note  and  agree  to 
pay  the  same  as  a   part  of  the  consideration  thereof 48'J 

325.  Petition  for  reformation  of  a  mortgage,  foreclosure  of  same,  and 

for    the    marshalling   of   liens 492 

320.     Petition  to  declare  a  deed  a  mortgage  and  for  a  foreclosure  of 

the  same 493 


CHAPTER  XIII. 

Thk  Law  and  Procedure  by  Which  Real  Estate  is  Sold  by  Foreclosure 

of  Mechanic's  Lien, 
section  pagr 

375.  The  origin  and  nature  of  the  lien 495 

376.  Tlie  right  to  assert  the  lien  may  be  waived 490 

377.  The  lien  for  labor  and  material  furnished  for  the  improvement  of 

real  estate 490 

378.  The  lien  on  contiguous  lots  or  separate  buildings 497 

379.  Duty  of  contractor  to  defend  any  action  brought  to  enforce  a  lien, 

when 498 

380.  How  lien  acquired — Notice  to  owner  of  filing  lien 498 

381.  Lien  for  work  and  labor  on  roads,  streets,  sewers  and  ditches — 

Liens  for  same  work  on  an  improvement  pro  rata 49!) 

382.  The  owner  may  require  lienholder  to  commence  suit,  when 500 

383.  Plights  and  liabilities  of  executors  and  married  women  as  to  me- 

chanic's  liens 50.1 

384.  Subcontractor's   lien — How  acquired 501 

3S5.     Owner  to  retain  subsequent  payments  on  notice 502 

38(i.     The  statement  to  be  filed  with  recorder  to  notify  fellow-laborers..  502 

387.  Pro  rata   payment  of  subcontractors  out  of  subsequent  payments 

due  head  contractor    502 

388.  Copy  of  statement   to  be  furnished  to  head  contractor — His  duty 

—Priority  of  lien 503 

389.  Remedy  of  subcontractor  when   his  contractor  or  the  owner  re- 

fuses   t<>    pay 504 

390.  When  and  how  subcontractor  may  obtain  lien  on  the  property 

of  t  he  owner  504 

391.  Such   lieu   entitled   to   priority   over   lien   of   head   contractor — As- 

signments, attachments,  etc 505 

392.  KH'ect  of  collusion  and  fraud  in  payment  to  principal  contractor..   505 

393.  Service  of  notice,  affidavits,  etc. —  How  made 500 

394.  Remedy    of   contractors  and   others   where  owner   suspends  work 

without  their  consent 506 


TABLE    OF    CONTENTS.  XXXI 

PACE 
SECTION 

395.  Laborers  shall  have  other  lien  on  real  property  of  employer- 
Precedence  of  lien — When  deemed  waived — What  liens  shall 
have  priority 506 

31)6.     To  whom  foregoing  sections  apply  507 


FORMS. 


Procedure  in  Sale  of  Real  Estate  to  Satisfy  a  Mechanic's  Lien. 

no.  PAGE 

327.  The  mechanic's  lien 509 

328.  The  petition  for  foreclosure  of  a  mechanic's  lien 510 

329.  The  precipe  for  summons ;>1- 

330.  The  summons  and  its  return  of  service  by  the  sheriff 512 

331.  An  answer  and  cross-petition  in  the  action 513 

332.  Reply  to  answer  and  answer  to  cross-petition 514 

333.  The  verdict  of  the  jury 515 

334.  Motion  to  set  aside  the  verdict  and  for  a  new  trial 515 

335.  Order  of  court  overruling  motion  for  a  new  trial,  judgment  on  the 

verdict  and  decree  ordering  sale  of  real  estate 515 

336.  The  order  of  sale  directed  by  the  clerk  to  the  sheriff 516 

337.  Sheriff's    procedure    under    said    order    of    sale    and   oath    of   ap- 

praisers      517 

338.  Appraisers'  report    51 S 

339.  Proof  of  publication  of  legal  notice  of  sale  of  real  estate 518 

340.  Legal  notice  of  sale  of  real  estate >18 

341.  Sheriff's  return  of  his  proceedings  under  the  order  of  sale 518 

342.  Decree  and  order  of  court  confirming  sale,  ordering  deed  and  dis- 

tributing  fund    519 

343.  Sheriff's  deed   520 


CHAPTER  XIV. 

The  Law  and  Procedure  hy  Which  Real  Estate  is  Sold  Under  Fore- 
closure of  Tax  Lien. 
section  page 

397.     The  procedure  in  foreclosure  of  tax  lien 523 

39S.     When  the  lien  of  the  State  attaches 524 

399.  Penalty  for  non-payment  of  real  estate  tax 525 

400.  Owner  of  life  estate,  guardian,  agent,  ete..  to  pay  tax,  when.  .  .  .    520 

401.  All  persons  holding  lands  shall  list  lands  for  taxation — Penalty 

for  neglect 526 

402.  Paying  taxes  on  lands — Agents  and  attorneys — Payment  by  other 

than  owner   526 

403.  Guardian's  liability  for  neglect  to  pay  taxes 527 


XXXii  TABLE    OF    CONTENTS. 

SECTION  PAGE 

404,  Duty  of  executors  to  pay  taxes,  when 527 

405.  Duty  of  agents  and  attorneys  as  to  payment  of  taxes 528 

400.     The  lien  of  such  executors,  guardian  or  attorney  on  the  land  for 

money  advanced  for  taxes  528 

407.  Liability  and  forfeiture  of  tenants  in  curtesy  or  dower  for  neg- 

lect— Redemption  in  such  case 528 

408.  Any  one  claiming  lien  on  real  estate  shall  have  the  tax  lien  on 

all  taxes  paid  by  him 529 

400.  Rights  of  a  joint  owner  who  pays  his  portion  of  tax — Those  not 
paying  held  liable  as  if  partition  had  not  been  made — A  tax 
on  lands  at  judicial  sale  to  be  paid  out  of  proceeds  of  sale 
— Part  owner  paying  tax  on  whole  tract  shall  have  lien.  .  .   529 

410.  General  taxes  paid  out  of  proceeds  of  judicial  sale,  when i    530 

411.  The  rule  as  to  payment  of  assessments  out  of  proceeds  of  a  ju- 

dicial sale  of  real  estate 531 

412.  Delinquent    land   list — Cuyahoga   and   Hamilton   Counties — How 

published 532 

413.  A  failure  to  comply  with  the  requirement  of  the  statute  as  to  ad- 

vertisement defeats  title  of  purchaser 533 

414.  Auditor  to  compare  delinquent  list  with  duplicate 533 

415.  Copy  to  be  inserted  at  foot  of  record  of  delinquent  list — Certifi- 

cate as  to  their  publication 533 

410.     Proceedings  when  delinquent  list,  not  published 533 

417.  Omitted  publication f:"4 

418.  Paper  containing  list  to  be  sent  to  auditor  of  State  and  printers' 

account    **>'* 

419.  Sale  of  delinquent  lands — Conditions — Cuyahoga  County 534 

420.  How  to  proceed  if  purchaser  fails  to  pay 535 

421.  County  auditor  or  deputy  to  attend  sales  of  delinquent  lands — To 

forward  copy  of  record  of  sales  to  auditor  of  State 535 

422.  Certificate  of  purchase  of  delinquent  lands— Duty  of  county  sur- 

veyor under   such   certificate    53(t 

423.  When  survey  and  deeds  shall  be  made 530 

424.  Certificates  assignable 53(> 

425.  When  auditor  to  make  deeds — When  two  or  more  tracts  are  sold 

to  one  purchaser — Auditor  to  make  one  deed 537 

420.  Title  by  deed  and  its  effect  as  evidence 537 

427.  Sale  for  tax  cuts  out  previous  liens  and  bars  dower 538 

428.  Tn  what  cases  survey  of  land  sold  for  taxes,  dispensed  with 538 

429.  Purchaser  of  the  interest  of  joint  tenant,  etc.,  to  hold  in  common.  539 

430.  Title  acquired  at  tax  sale  invalid,  when 539 

431.  In  tax  sale  of  delinquent  lands,  the  statutes  authorizing  the  sale 

to  be  strictly  construed 54° 

432.  Lien  of  tax  purchaser  for  purchase  money,  etc.,  of  sale  invalid.  .    540 

433.  Sale  not  invalid  if  tract  charged  in  wrong  name 541 

434.  The  real  estate  must  be  described  so  as  to  sufficiently  identify  the 

property 541 

435.  Auditor  may  make  deeds  of  lands  heretofore  sold 541 

436.  When  certificates  have  been  lost  or  destroyed— How  deeds  made.    542 


TABLE   OF    CONTENTS.  XXXJii 

SECTION  PAGE 

437.  How  auditor  to  keep  minutes  of  deeds  made 549 

438.  And  to  note  redemption  of  lands 542 

439.  Sale  of  land  for  taxes  regularly  paid,  void — Proceedings  in  such 

case 543 

440.  When  auditor  may  make  deeds  for  lands  in  other  counties 543 

441.  Auditor   to   transfer   land   sold   for  taxes 543 

442.  Applications  for  redemption  to  be  made  to  auditor 543 

443.  Redemption  of  delinquent  lands — Limitation 544 

444.  How  lands  may  be  redeemed 544 

445.  Joint  owner,  etc.,  may  redeem  his  proportion 545 

440.  Proceedings  of   party,   treasurer   and  auditor  on   application   to 

redeem 545 

447.  Payment  of  redemption  money  to  tax  purchaser,  etc 545 

448.  When  auditor  to  note  on  back  of  certificate  that  deposit  has  not 

been  made — Note  of  redemption  on  record  of  tax  sjxles....   546 
44!l.     Tax   purchaser's   improvements — How  paid  for,  etc 546 

450.  Sale,   etc.,   for   taxes  of   lands   and   lots,   etc.,   under   permanent 

lease   547 

451.  Proceedings  when  land  is  returned  delinquent  upon  which  taxes 

were  paid 547 


FORMS. 

NO.  PAGR 

344.  The  petition 518 

345.  Older  for  publication  for  unknown  heirs 550 

346.  The  proof  of  publication 550 

347.  The    legal    notice 550 

34S.     Entry  foreclosing  lien  and  ordering  sale 550 

340.     The  order  of  sale  from  the  clerk  to  the  sheriff .>  •  I 

350.  The  sheriff's  return  of  his  proceeding  under  the  order  of  sale.  .  .  .  552 

351.  Proof  of  publication  of  legal  notice  of  sale 55:: 

352.  Legal  notice  of  sheriff's  sale  cf  real  estate 553 

353.  Appointment  of  appraisers 55:! 

354.  The  oath  of  the  appraisers 554 

355.  Appraisement   554 

356.  Order  of  court  confirming  sale  and  distributing  proceeds  of  the 

sale    554 

357.  The  sheriff's  deed  in  foreclosure  of  tax  lien 555 

358.  Tax  certificate — Delinquent  tax  sale 557 

350.     Auditor's  deed — Delinquent  sale 557 

360.  Petition  by  treasurer  of  county  to  sell   real  estate  for  payment 

of  taxes  and  street  assessments    '. 558 

361.  Order  of  sale  under  the  above  petition   550 

362.  Form  for  an  answer  containing  a   general   denial — Defense  of  a 

corner  lot  and  statute  of  limitations 560 


XXXVI  "         TABLE   OF    CONTENTS. 

NO.  PAGE 

381.  Answer  of  guardian  ad  litem G15 

382.  Motion  for  substitution  of  members  of  the  committee 615 

383.  Report  of  the  committee  to  investigate  as  to  the  insanity  of  the 

defendant G15 

384.  Affidavit  of  citizens  as  to  the  expediency  of  the  sale  of  real  es- 

tate as  proposed  in  petition 616 

385.  Entry  appointing  appraisers   C16 

386.  The  appraisers'  report  of  said  real  estate  and  their  oath 616 

387.  Entry  authorizing  sale  of  real  estate  free  of  widow's  dower.  .  .  .  617 


CHAPTER  XVI. 

The  Law  and  Procedure  by  Which  Title  to  Real  Estate  is  Trans- 
ferred by  Condemnation  Proceedings 
section  page 

502.  Constitutional  provisions  as  to  the  inviolability  of  private  prop- 

erty      610 

503.  Necessity  for  the  right  of  eminent  domain 620 

504.  Power  of  municipalities  to  appropriate  property  for  public  uses.  620 

505.  For  what  purposes  a  municipality  may  appropriate   property.  .  021 

506.  In  what  cases  property  may  be  appropriated  outside  a  munici- 

pality— Proviso  as  to  cemeteries 621 

507.  The  resolution  of  council  and  notice  of  intent  to  appropriate.  .  .  .  622 

508.  In  what  courts  the  application  may  be  made (122 

500.     The  service  of  notice  to  owners  of  property 623 

510.  The  court  must  fix  time  for  the  inquiry 623 

511.  A  view  of  the  premises  may  be  required 623 

512.  Guardian  ad  litem  appointed,  when 623 

513.  How  jury  to  return  assessment — Manner  of  conducting  the  case.  624 

514.  Verdict  in  whole  or  in  part 624 

515.  Orders  as  to  payment  or  deposit  of  assessment — Order  as  to  inter- 

pleader         625 

516.  The  manner  in  which   costs  are  assessed  and  paid 625 

517.  How  interested  parties  may  give  bond  in  such  cases 625 

518.  Review  proceedings — Appeal  to  court  of  common   pleas 626 

519.  Effect  of  neglect  to  pay  or  take  possession  in  six  months 626 

520.  What  law  governs  appropriation  of  private  property  by  corpora- 

tions      627 

521.  Probate  bas  exclusive  jurisdiction  to  make  inquest  for  amount  of 

compensation  to  owner  in  appropriation  cases 627 

522.  In  what  cases  appropriation  of  real  estate  can  be  made  by  a  cor- 

poration         627 

523.  How  appropriation  of  property  of  a  minor,  idiot,  imbecile  or  in- 

sane person   may  bo  made 627 

524.  What   the  petition  for  such  appropriation  must  contain,  and  in 

what  courts  the  same  must  be  filed 628 

525.  In  what  county  the  petition  must  be  filed 620 

526.  Summons — Its  command  and  service  thereof 62!) 


TABLE    OF    CONTENTS  XXXV11 

SECTION  PAGE 

527.  Service  by  publication G29 

528.  Jurisdictional  questions  to  be  first  determined 029 

529.  Jurors  to  be  drawn  from  tbe  box  and  venire  issued (530 

530.  Wbo  entitled  to  a  separate  trial,  and  how  trial  conducted G30 

531.  The  court  may  allow  any  amendment 030 

532.  Time  of  trial,  adjournments  and   discharge  of  juries 031 

533.  How  panel  to  be  filled — Jurors  to  be  interrogated  by  court 031 

534.  Challenges  to  jurors,  and  how  vacancies  in  jury  box  filled 031 

535.  The  oath  to  be  administered  to  jury 032 

530.     The  form  of  writ  to  sheriff 032 

537.  Judge  must  deliver  certain  copies  to  sheriff 032 

538.  'Witnesses  may  be  examined  before  jury 033 

539.  When  a  structure  is  partly  on  land  sought  to  be  appropriated..  033 

540.  Verdict  and  confirmation   thereof 034 

541.  When  and  how  corporation  may  have  possession 034 

542.  When  and  how  corporation  may  abandon  proceeding 034 

543.  When  action  may  be  brought  for  costs  and  expenses 035 

544.  New  trial — Proceedings  thereon 035 

545.  Either  party  may  file  a  petition  in  error 030 

540.     Proceedings   in  the  common  pleas  on  error 030 

547.  How  school  land  may  be  appropriated 036 

548.  When  proceedings  to  appropriate  private  property  may  be  com- 

menced in  court  of  common  pleas 037 

549.  Court  to  appoint  attorney  for  party  absent  or  under  disability.  037 

550.  Conflicting  claims  not  to  be  passed  upon 638 

551.  But  to  be  adjudicated  in  the  common  pleas 038 

552.  Such  proceeding  a  civil  action 639 

553.  Unfinished  roadbed  of  railroad  company  may  be  condemned.  .  .  .  039 

554.  Proceedings   in   such   case 639 

555.  In  what  court  such  proceedings  may  be  commenced 640 

550.  Proceedings  when  land  is  held  without  agreement  by  a  corpo- 
ration    041 

557.  Summons  in  such  case — Judgment  and  execution 042 

558.  When   injunction  may  issue   against  corporation 642 

559.  Fees  of  witnesses,  officers  and  probate  judge,  and  how  costs  ad- 

judged      643 

560.  When  costs  may  be  apportioned 643 

561.  When  this  chapter  does  not  apply 644 


FORMS. 


Procedure  by  Which  a  Municipal  Corporation  Condemns  Real  Estate 

for  Public  Pitrposes. 
no.  PAGE 

388.  Application  to  assess  compensation 645 

389.  The  precipe  to  the  clerk   647 


XXXviii  TABLE  OP  CONTENTS. 

NO.  PACK 

390.     The  order  of  the  court  as  to  the  manner  of  notice  in  the  above 

case 647 

301.     The  notice  to  be  served  by  the  sheriff  in  compliance  with   pre- 
vious order   648 

392.  The  sheriff's  return  of  his  proceedings  under  this  writ 648 

393.  Answer   of   defendant    649 

394.  Reply  of  plaintiff 650  ' 

395.  Motion  by  county  commissioners  to  be  made  parties  defendant.  .  G50 

396.  Waiver   of   notice    and   entry   of   appearance   of   county    commis- 

sioners      651 

397.  Order  of  the  court  making  county  commissioners  defendants...  651 

398.  Offer  of  plaintiff  to  confess  judgment 651 

399.  Decree  and  order  of  the  court  impaneling  jury 651 

400.  Order  to  clerk  and  sheriff  to  draw  jury 652 

401.  Form  for  list  of  names  drawn  for  jurors  in  the  probate  court..  652 

402.  The  venire   653 

403.  The  sheriff's  return  of  his  proceedings  under  said  writ 65S 

404.  Writ  of   view 654 

405.  The  sheriff's  return  of  his  proceedings  under  said  writ 654 

406.  The  verdict  of  the  jury   654 

407.  Order  of  the  court  confirming  verdict   655 


Procedure  in  Transfer  of  Title  of  ttie  Property  of  an  Individual  in 
Condemnation  Proceedings  by  a  Private  Corporation. 

408.  Form  for  the  petition  for  the  appropriation  of  private  property.    656 

409.  The  precipe  in  such  case 658 

410.  Order  issuing  summons  for  the  defendant  and  fixing  the  time  and 

place  for  hearing  preliminary  questions 658 

411.  The  summons  and  the  sheriff's  return  of  his  proceedings  under 

said  writ   658 

412.  Motion  to  dismiss  action 659 

413.  Order    of    the    court    overruling   motion,    directing    that    a    jury 

be  drawn  and  fixing  the  time  at  which  the  jury  must  appear.  659 

414.  The  order  to  draw  jury 660 

415.  The  sheriff's  return  of  his  proceedings  under  said  writ 660 

416.  The  venire 661 

417.  The  sheriff's  return    661 

418.  Entry  of  the  court,  ordering  the  jury  to  view  the  premises  sought 

to  be  appropriated  662 

419.  Writ  of  view   662 

420.  Sheriff's  return  of  his  proceedings  under  this  writ 663 

421.  The  verdict  of  the  jury 6fl3 

422.  Motion  to  set  aside  verdict  and  for  a  new  trial 663 

423.  Entry  overruling  motion  and  confirming  the  verdict  of  the  jury.  .    664 


TABLE    OF    CONTENTS.  XXXIX 

CHAPTER   XVII. 

Transfer  of  Title  by  Vacation  of  a  Street  or  Alley  by  a  Municipality. 

section  page 

502.     Vacation  of  street  or  alloy  by  order  of  the  court 665 

563.  Vacated  portion  of  street  or  alley  revert*  to  adjoining  owners.  .    666 

564.  Petition  for  vacation  of  such  street  or  alley,  and  the  notice  there- 

of  to   adjoining  owners 666 

565.  Street  or  alley  not  to  be  closed  until  damages  are  paid 667 


FORMS. 

NO.  PAGE 

424.  The  petition   therefor 668 

425.  The  publication  of  the  legal  notice  in  such  cases 668 

426.  Proof  of  publication  of  the  above  notice 669 

427.  The  order  and  decree  of  the  court  vacating  the  alley 669 

CHAPTER  XVIII. 

The  Action  to  Quiet  Title, 
section  page 

566.  The  statutory  action  to  quiet  title  an  additional  remedy 670 

567.  The  action  prior  to  the  statute 670 

568.  The  action  to  quiet  title  and  ejectment  distinguished 670 

569.  The  nature  of  the  action 671 

570.  The  action  may  be  brought  to  settle  a  disputed  boundary,  when .  .  673 

571.  The  action  to  quiet  title  under  the  statute 673 

572.  What  the  petition  should  allege 673 

573.  Answers,  cross-petitions  and  counter-claims  in  the  action 674 

574.  Necessity  of  alleging  possession 674 

575.  The  service  on  defendants,  actual  and  constructive 676 

576.  The  nature  and  effect  of  the  decree  quieting  title 676 

577.  Trial  by  jury  may  be  demanded  in  the  action 677 

578.  Injunctions  against  defendants  may  be  granted,  when 677 


FORMS. 


Procedure  in  the  Action  to  Quiet  Title, 
no.  page 

428.  The   petition    678 

429.  The  affidavit  for  service  by  publication 680 

430.  Entry  ordering  service  by  publication 680 

431.  The  service  by  publication   680 


Si  TABLE   OF    CONTENTS. 

NO.  PAGE 

432.  The  proof  of  publication 082 

433.  The  decree  quieting  title 082 

434.  Another  form  for  a  petition  in  the  action  to  quiet  title 683 

435.  Another  form  for  the   decree  quieting  title 684 

CHAPTER  XIX. 

The  Law  and  Forms  in  the  Action  to  Recover  Possession  of  Real 

Estate^ — The  Occupying  Claimant's  Law. 
section  page 

579.  The  nature  of  the  action  to  recover  possession  of  real  estate.  .  .  .    685 

580.  Petition  in  the  action  for  possession  of  real  estate 087 

581.  Petition  by  tenant  in  common  against  a  cotenant 088 

582.  Answer  to  the  petition  in  ejectment 088 

583.  The  recovery  when  right  terminates  during  the  action 089 

584.  Who  may  maintain  the  action 089 

585.  Plaintiff's  title 091 

586.  The  proof  of  title  required  in  the  action.  . 691 

587.  Neither  party  will  be  permitted  to  contest  a  prior  deed,  when.  .    691 

588.  Adverse   possession   and  the   statute   of  limitations 692 

589.  The  relief  that  may  be  obtained  in  the  action 692 

590.  The  causes  of  action  that  may  be  joined  in  the  action  to  recover 

possession   of   real   estate 692 

591.  The  action  triable  to  a  jury 093 

592.  In  the  action  for  the  recovery  of  the  purchase  money,  vendee  may 

recoup  for  the  amount  of  liens  and  encumbrances,  when 093 

593.  Parties  may  have  benefit  of  occupying  claimants'  law,  when 094 

594.  In  what  cases  occupying  claimant  to  be  paid  for  improvements.  .  694 

595.  Title  under  sale  for  taxes  sufficient  to  protect  occupant 696 

596.  Entry  of  claim  for  improvements 696 

597.  Regular  jury  to  act — Duties  of   jury 606 

598.  Sheriff  to  summon  talesman,  when 097 

599.  Setting  verdict  aside — Challenge — Costs,  if  too   many  witnesses 

called   697 

600.  Judgment  and  execution  on  verdict  for  plaintiff 698 

601.  Proceedings  if  verdict  is  for  occupying  claimant 698 

602.  A  writ  of  possession  will  issue,  when 699 

603.  When  claimant  elects  to  receive  value  of  the  land 699 

604.  The  occupant  may  have  an  action  for  the  title,  when. 


FORMS. 


Forms  in  Procedure  to  Recover  Possession  of  Real  Estate  and  to  Re- 
cover for   Improvements  Under  the  Occupying   Claimant's  Law. 

no.  page 

430.     The  petition  to  recover  possession  of  real  estate 700 

437.     The  answer   of   defendant 701 


TABLE  OP   CONTENTS.  xli 
NO.                                                                                                                                                            PAGE 

438.  The  verdict  of  the  jury 701 

439.  Judgment  on  the  verdict  and  application  by  occupying  claimant 

for  valuation  of  improvements 701 

440.  Application  to  the  clerk  for  a  jury 702 

441.  The  writ  for  a  jury  directed  by  the  clerk  to  the  sheriff 702 

442.  The  certificate  of  the  oath  of  a  jury 703 

443.  The   assessment   by   a  jury   for   improvements   under   occupying 

claimant's    law    703 

444.  The   sheriff's   return  of   his   writ   in   an   action   for   relief  under 

the  occupying  claimant's  law    703 

445.  The  oath   of  the  jury   in  the  action 704 

446.  The  order  and  judgment  when  the  plaintiff  in  ejectment  elects 

to  pay  to  the  occupying  claimant  for  lasting  and  valuable 

improvements  and  to  keep  the  lands 704 

447.  Another  form  for  the  petition  in  an  action  to  recover  possession 

of  real  estate    705 


CHAPTER  XX. 

Law  and  Procedure  When  Courts  Authorize  Executors  and  Admin- 
istrators to  Complete  Decedent's  Land  Contract, 
section  PAGE 

605.  When  the   survivors  of  vendors  of   land   may   be  authorized  to 

convey    it    706 

606.  What  the  petition  must  contain  in  such  instances 706 

607.  The  order  of  the  court  in  such  instances  and  deed  for  the  real 

estate    707 

608.  An  action  by  an  administrator  to  complete  decedent's  real  con- 

tract— Where  the  action  may  be  filed,  and  the  requirements 

of  the  law  as  to  the  parties  to  the  action 707 

609.  When  the  court  may  order  conveyance — Deed  and  its  effect. .  .  .  707 

610.  When  the  heirs  of  deceased  purchaser  may  have  a  like  action..  708 


FORMS. 


Forms   of  Procedure  for   Completion,   by  the  Representatives   of  a 

Decedent,  of  His  Real  Contracts, 
no.  PAGE 

448.  Petition   to   complete   real   contract    709 

449.  Answer  of  defendants  in  such  cases 710 

450.  Answer  of  widow  in  such  case 710 

451.  Entry  ordering  legal  representative  to  complete  contract 711 

452.  Form  for  deed  to  complete  decedent's  land  contract 712 

453.  Another  form  for  petition  by  an  administrator  to  complete  de- 

cedent's contract  for  sale  of  land 713 

454.  Form  for  a  petition  by  a  surviving  contractor 714 


xlii  TABLE    OF    CONTENTS. 


CHAPTER  XXI. 
The  Action  to  Contest  a  Will. 

SECTION  PAGE 

611.     The   nature   of  the   action  to   contest  a  will 716 

012.     The  scope  of  the  inquiry 711) 

613.     Who   may   make  a   will 719 

614-  What   constitutes  a  sound  and  disposing  mind  and  memory....    719 

015.     Undue    influence     720 

616.     The  manner  in  which  a  will  must  be  executed 720 

017.  The  acknowledgment  by  the  testator  and  the  attestation  of  the 

will     722 

018.  The  manner  in  which  a  will  may  be  revoked 723 

619.     The  certificate  from  the  clerk  to  the  probate  court 724 

020.     Duty   of  the   probate  judge  on   notice  of  contest — Papers  to  be 

sent  to  the  common  pleas  and  what  return  is  made  to  the 

probate  court 724 

621.     The  manner   in  which  the   issue  is  made  up 725 

022.  The    conduct   of    the    trial 725 

023.  The  action  to  be  tried  by  a  jury — The  court  may  direct  a  ver- 

dict.       726 

624.     The  effect  of  the  order  of  probate  on  the  issue 720 

025.     The  testimony  upon  the  probate  of  the  will  becomes  competent, 

when     727 

020.     Who  may  contest  a  will  or  codicil 727 

027.  The  necessary  parties  to  the  action 728 

028.  The  limitation  of  the  action  to  contest  a  will 728 

029.  Error,  not  appeal,  lies  in  the  action  to  contest  a  will 729 


FORMS. 


Procedure  in  the  Action  to  Contest  a   Will,, 
no.  page 

455.     The  petition  to  contest  a  will ;  .  .    731 

450.     The    precipe     733 

457.  The  summons  in  the  action :  .  .  .    733 

458.  The  sheriff's  return  of  the  summons 733 

459.  Certificate  to  the  probate  court  by  clerk  on  the  filing  of  the  )>e- 

tition    to   contest    will 734 

460.  Journal  entry  and  certificate   of   probate  court   in  the  action   to 

contest    a   will    734 

461.  Certificate  to  the  court  of  common  pleas  in  the  action  to  contest 

a    will     735 

402.  The   joint    answer   of    the    defendants    in    the    action 735 

403.  The    verdict    of    the   jury   sustaining   the   will 730 

464.      Motion    for   new    trial 736 


TA3IJE   OP    CONTENTS.  xliii 

2TO.  PAOK 

465.  rrhe   judgment  of   the   court   overruling  the   motion   for   a   new 

trial  and  sustaining  the  will 737 

466.  The  certificate  of  the  clerk  of  the  court  of  common  pleas,  with 

copy  of  final  judgment  to  the  probate  court,  after  final 
judgment  is  rendered  in  the  action  to  contest  the  validity 
of    a    will 737 

467.  The  application  for  the  appointment  of  a  guardian  ad  litem   in 

the  action  to  contest  a  will 738 

468.  The  order  of  the  court  appointing  a  guardian  ad  litem  for  minor 

defendants     738 

460.     The  answer  of  guardian  ad  litem,  for  minor   defendants   in   the 

action  to  contest  a  will 738 

470.  The  order  entered  on  the  journal  making  up  the  issue,  when  the 

issue  is  not  made  by  the  pleadings 739 

471.  Another   form   for   a   petition 73!) 

472.  Another  form  for  the  answer  of  defendants 740 

473.  Another  form  for  a  petition  to  contest  will  upon  the  ground  that 

the  alleged  testator  was  not  of  sound  and  disposing  mind 
and  memory,  and  was  under  undue  influence  and  restraint, 
in  attempting  to  make  the  same 740 

474.  Petition  to  contest  a  nuncupative  will 741 


TABLE  OF   CASES. 


[References  are   to   sections.] 


Abbott  v.   Bostworth    (2  W.   L.   B. 

92),   462. 
Abram  v.  Will  (6  0.  164),  585,  597. 
Adair  v.  Farrey  (105  N.  W.  714),  9. 
Adams  v.  Jeffries  (12  0.  253),  60. 
Adams  v.  Jeffrey  (12  0.  253),  61. 
Adams  v.   Parnell    (11   C.   C.   367), 

584. 
Administrator  v.  Executor  (22  0.  S. 

436),  338. 
Affleck  v.  Snodgrass   (8  0.  S.  235), 

465. 
Alabama  v.  Price  (42  Ala.  39),  206. 
Albert  v.  Armstrong  ( 14  C.  C.  296), 

160. 
Allen  v.  Allen   (18  0.  S.  234),  215. 
Allen  v.  Bank   (23  O.  S.  97),  365. 
Allen  v.  Everly  ( 24  0.  S.  97 ) ,  366. 
Allen  v.  McCoy   ( 8  0.  469 ) ,  452. 
Allen  v.  McCoy  (8  O.  418),  476,  480. 
Albright  v.  Meredith  (58  0.  S.  194), 

92. 
Allen  v.  Miller  (11  0.  S.  374),  9,  30. 
Allen  v.  Parish   (3  O.  187),  107. 
Allen  v.  Russell  (59  0.  S.  137),  407. 
Ambrose  v.   Byrne    (61   0.   S.   146), 

131. 
Andrews,  etc.,  v.  Andrews    (7  0.  S. 

143),  627. 
Andrews  v.  Lembeck   (46  0.  S.  38), 

22. 
Andrew's   Will    (  [X.    Y.]    56   X.    E. 

Rep.  529),  616. 
American,  The,  etc.,  v.  Johnson   (17 

0.  S.  640),  34. 
Angier  v.  Ash  (6  Foster,  105),  27. 
Appeal  of  John  Weinland   (118  Pa. 

St.  37),  616. 
Appeal    of    Stoughton    (88    Pa.    St. 

198),  245. 


Appleby  v.  Mulany  (7  X.  P.  120). 
Archer    v.    Brockschmidt    (5    X.    P. 

349),  57.5. 
Armstrong     v.     Barton      (42     Miss. 

506),  59. 
Armstrong  v.  Heirs  (8  O.  552),  125. 
Armstrong   v.   Huston    (8    0.   552), 

104. 
Arnold  v.  Donaldson   (46  0.  S.  78), 

454. 
Arnold  v.  Donaldson   (46  0.  S.  73), 

65,  497. 
Arrowsmith  v.  Harmoning  (42  0    S. 

254),  257. 
Atchinson  v.  Raiiroad  (15  0.  S.  21). 
Atlantic   v.   Campbell    (40   S.   583), 

513. 
Aucker  v.  Adams  (23  0.  S.  543),  55, 

77. 
Avery  v.  Baura   (W.  576),  5S8. 
Avery  v.  Dufrees   (9  0.  145),  212. 
Avery  v.  Durfrees  (9  0.  147),  455. 
Avery  v.  Xieman  ( 7  X.  P.  46 ) ,  4S2. 
Avery  v.  Stites  (W.  56),  586. 


Babcock  v.  Camp  (12  0.  S.  11),  62. 
Babitt,   etc.,   v.    Morgan    (31    0.    S. 

273),  97. 
Backer  v.  Shawhan    (41   0.   S.  27), 

48. 
Baird  v.  Kentloud  (8  0.  24),  92. 
Baird  v.  Kirkland  (8  0.  31),  107. 
Baird   v.    Ramsey    (2    C.    C.   X.    S. 

492),  569. 
Bailery  v.  Hughes    (35   0.  S.  597), 

568,  569. 
Bailey  v.  Hughes    (35   0.   S.   599), 

573. 


xlv 


xlvi 


TABLE    OF    CASES. 


[References  are   to   sections.] 


Bailey    v.    Culver     (184    Mo.    531), 

503. 
Baker's  Appeal    (107   Pa.  St.  381), 

616. 
Baker  v.  Baker   (51  0.  S.  217),  616. 
Baldwin  v.  Betzel    (1  Iddings  F.  R. 

D.  138),  569. 
Baldwin  v.  Jacks  (3  0.  Dec.  Reprint 

545),  461. 
Baldwin  v.  Jacks  (3  0.  Dec.  Reprint 

546),  468. 
Baldwin  v.   Reese   ( 8  A.  L.  R.  550), 

509,   573. 
Baldwin   v.   Wilson    (7  N.  P.   506), 

14. 
Ballinger  v.  Griffith   (23  O.  S.  619). 

94. 
Baltimore,  etc.  v.  Goodman    ( 38  W. 

L.  B.  237),  145. 
Bam  v.  Wick  (14  0.  S.  507),  341. 
Bancroft  v.   White    (1   Gaines  190), 

460. 
Bank,  etc.,  v.  Wheeling,  etc.    (11  C. 

C.  413),  103. 
Bank  v.  Bethel    (32  W.  L.  B.  135), 

158. 
Bank  v.  Carpenter  (7  O.  21),  207. 
Bank  v.  Covert  (13  O.  240),  37. 
Bank  v.  Hinton  (12  O.  S.  503),  465. 
Bank  v.  Hinton  (21  O.  S.  509),  462. 
Hank   v.   Ide    (20  C.  C.  665).  207. 
Bank  v.  Pierson    (3  W.  L.  J.   132), 

141. 
Bank  v.  Roosa    (13  O.  334"),  101. 
Bank  v.  Stevens   ( 1  O.  S.  233),  69. 
Bank   v.   Tennessee    (62   O.   S.  564), 

92. 
Bank  v.  Turpin    (3  O.  514).  94. 
Bank  v.  Wallace  (45  O.  S.  152),  303. 
Bank  v.  Ward    (11  O.  128),  20. 
Bank  v.  White   (Wright,  51),  584. 
Banning  v.  Banning  (12  O.  S.  437), 

018. 
Banning  v.  Kerby   (7  A.  L.  R.  602), 

627. 
Berber  v.  Hite   (39  O.  S.  185).  401. 
Bargor   v.   Cochrun    (15  O.   S.  460), 

346. 
Barker  v.   Comp    (71    Am.  St.   186), 

369. 
Barney     v.     NYw     Alhany,    etc.     (1 

Handy,  571),  33. 


Barr  v.  Klosterman    (3  C.  C.  431), 

247. 
Barry  v.  Hovey   (30  O.  S.  348),  26. 
Barry  v.  Hovey  (30  0.  S.  344),  56. 
Barrett   v.    Copeland    ( 18   Vermont, 

69),  29. 
Barrington    v.    Alexander    (6    O.    S. 

189),  111. 
Barthell  v.  Roderick    (34  La.  518), 

69. 
Bartholomew  v.  Lutherean  (35  O.  S. 

567),  572,  578. 
Barton  v.  Morris   (15  O.  408),  588. 
Barton  v.  Norris    (15  O.  408),  597. 
Bass  v.  Spooner  (45  Ind.  489),  62. 
Bassett  v.  Daniels    (10  O.  S.   617), 

118. 
Bates  v.  Peoples,  etc.  (42  O.  S.  655), 

408. 
Bay    v.    Strimmel     (7    O.    D.    380), 

507. 
Bazell  v.  Belcher  (31  O.  S.  572),  55. 
Bear  v.   Bookmiller    (3   C.   C.   484), 

118. 
Beardsley  v.  Chapman  (1  O.  S.  119), 

594.' 
Beaumont  v.  Ogden   (24  O.  S.  452), 

99. 
Beckel  v.   Petticrew    (0   O.  S.   247). 

377. 
Beggs  v.  Vandever   ( W.  325 ) ,  94. 
Behrens  v.  Behrens   (47  O.  S.  323), 

018,  624. 
Beitman  v.  Mackenzie    ( 1  W.  L.  B. 

272).  156. 
Bell   v.  Dutoit    (40  O.  S.  330),  284. 
Bell  v.  Neely    (1  Bail  L.  312),  471. 
Bell  v.  Williams   (1  Head  229),  69. 
Belle  v.  New  York   (1  O.  Paige  49), 

465. 
Belts  v.  Snyder   (48  O.  S.  492),  364. 
Bender  v.  Finkbone   (25  0.  S.  103), 

94. 
Benner  v.    Benner    (03   O.   S.   220), 

47. 
Bennett  v.  Williams   (5  O.  461),  56. 
Benson  v.    Alley    (8   O.   S.  604).  41. 
Benson  v.  Cilly  (8  O.  S.  604),  206. 
Benton   v.   Shafer    (47    O.    S.    117), 

11,  57. 
Benton   t.    Shaffer    (47    O.    S.    129), 

310. 


TABLE    OF    CASES. 
[References  are    to   sections.] 


xlvii 


Berbeck    v.    Spollen    (10    Rec.   491), 

306. 
Bercaw  v.  Cockerell    (20  0.  S.  163), 

3(14. 
Bernsdorf  v.  Hardway  ( 7  C.  C.  378  ) , 

376. 
Bettle  v.  Wilson  (  14  0.  257),  463. 
Betts  v.  Wise   (110.  222).  452. 
Bigelow  v.   Bigelow    (4  O.  428),  61. 
Bigelow  v.  Renkler    (25  0.  S.  609), 

100. 
Biggs  v.  Annim    (4  W.   L.   J.  .540), 

480. 
Biggs  v.  Beckell   (12  0.  S.  49),  212. 
I'.iggs  v.  Bickle   (12  0.  S.  472),  206. 
Biggins  v.  Jones  (39  O.  S.  995),  316 

466. 
Black    v.    George     (26    0.    S.    629), 

329. 
Black  v.  Hoyt    (33  0.  S.  203),  462. 
Black   v.   Kuhlman    (30  0.   S.    199), 

454,  457. 
Black   v.   Kuhlman    (30   0.   S.  204), 

46. 
Black   v.   Kuhlman    (30   0.   S.    196), 

454. 
Blackburn     v.      Blackburn      (8      0. 

81),  586. 
Blair  v.  Broneley  (5  Hare  542),  155 
Blake  v.   Davis    (20  0.  239).  580. 
Bliss   v.    Fuhroman    (6    C.    C.    203), 

230. 
Bloar  v.  Piatt    (78   0.  S.   46),  626. 
Bloom     v.    Xoggle     (4     0.     S.    45), 

364. 
Boal  v.  King  (W.  223).  597. 
Boardman  v.  Gore    (15  Mass.  335). 

155. 
Bobo   v.   Richmond    125   0.   S.    115), 

58S. 
Bocher   v.    Shawan    (41    O.    S.   272), 

56. 
Bohart    v.    Atkinson     (14    O.    228), 

316,  342. 
Boltz  v.  Stoltz    (41   0.  S.  540 1.  455, 

450. 
Bonipart    v.    Rogers    (24    Mo.    325), 

29S. 
Bonner     v.     Proprietors      (7     Mass. 

475).  303. 
Boomeishine   v.   Stocklayer    (Dayton 

38).  585. 
Boon  V.   Miller    (16  Mo.  457),  69. 


Boos  v.  Ewing    (17   O.  500),  304. 
Boraston's  Case  (3  O.  18),  302. 
Borgart  v.  City  (27  N.  J.  568),  569. 
Boswell  v.  Sharp   (15  0.  441),  62. 
Boswell   v.   Sharp    (15   0.   447),   01. 

63,  04. 
Boswewll  v.  Sharp    (15  O.  464),  64, 

60. 
Bothe   v.    Railway    (37    0.    S.    147), 

582. 
Bothe  v.  Railway  (37  O.  S.  147  i,  — 
Bott  v.  Burnell    (11  Mass.  105).  27. 
Boyer  v.  Boyer  (7  X.  P.  153),  338. 
Bradfield   v.   Hale    (07    0.    S.   317). 

584. 
Bradford  v.  Andrews  (20  0.  S.  208), 

628. 
Bradford  v.  Andrews   (20  0.  S.  209), 

029. 
Brady  v.  Krenger    (8  S.  Dak.  404), 

464. 
Bramlege    y.     Winder     (0    O.    Dec. 

319),  573. 
Bretz  v.  Moore   (4  C.  C.  X.  S.  550), 

466. 
Brennen  v.  Eggly   (23  Kan.  123),  9. 
Brewer  v.  Jones  (44  Ga.  71),  09. 
Brewer  v.   Maurer    (38   O.   S.  543), 

369. 
Brewton     v.     Cromwell     (51     0.     S. 

579),  370. 
Brickell    v.    Miles     (2    X.    P.    X.    S. 

154).   05. 
Brickell    v.    .Miles     (7    X.    P.    X.    S. 

153).  114. 
Briggel  v.  Starbuek   (34  O.  S.  280), 

207. 
Brisbane  v.  Stoughton    (17  0.  482), 

50. 
Broadfield  v.   Hale    (07   0.   S.  307    . 

688. 
Broadfield  v.   Hale    (67   <  >.   S.  323  |, 

300. 
Brobst    v.    Skillen    (16    0.    S.   382  I, 

321. 
Brock  v.  Gregg   (63  0.  S.  289),  270. 
Brodfield    v.    Hall     (07    0.    S.    323), 

366. 
Brooks  v.  Todd    (  1  Hand.   109).   100. 
Broton  v.  Allston  (4  W.  L.  M.  588), 

28. 
Brown  v.  Brown   (8  X.  H.  93),  307. 


xlviii 


TABLE   OF 
[References  are 


Brown  v.  Connecticut,  etc.    (6  C.  C. 

02),   133. 
Brown   v.   Griffith    (11    0.    S.   329), 

611. 
Brown  v.  Griffith  ( 1  0.  S.  329),  618. 
Brower  v.  Hunt  (18  0.  S.  311),  303. 
Brown  v.   Insurance    (6   C.   C.   62), 

373. 
Brown  v.  Kern    (6  N.  P.  68),  454, 

462. 
Brown  v.  Kern   (6  N.  P.  72),  47. 
Brown   v.   Kirkman    (1   0.   S.    110), 

364. 
Brown  v.  Wheeler    (17   Conn.  345), 

297. 
Brownell    v.    Brownell     (19    Wend. 

307),  303,   305. 
Brownell   v.    Colbath    (13    W.   L.   B. 

35),    159. 
Browns    v.    Proprietors     (7    Mass. 

475),  305. 
Bruce    v.    Holden     (21    Pick.    189), 

27. 
Bruce    v.    Osgood     (113    Ind.    360), 

297. 
Brundage  v.  Beggs   (25  O.  S.  652), 

30,  56. 
Brundidge  v.  Benton    ( 17  W.  L.  B. 

240),    611. 
Brush  v.  Joy    (113  N.  Y.  482),  288. 
Bryan  v.  Stump  (8  Gratt.  241),  297. 
Buchanan  v.  Roy  (2  O.  S.  251),  51, 

63. 
Buchanan  v.  Roy   (2  O.  S.  252),  59, 

369. 
The  Buckett,  etc.  v.  The  Eagle,  etc. 

(21    C.   C.   229),   34. 
Buckeye,  etc.  v.  Fee   ( 62  0.  S.  543 ) , 

142. 
The   Buckeye  Pipe   Line   Co.   v.    Fee 

(62  0.'  S.  556),  141. 
Buell  v.  Cross   (4  0.  327),  61,  64. 
Buhl  v.  Depot  Co.    (98  Mich.  596), 

563. 
Building,   etc.    v.    Clark    (43    0.    S. 

427),  364. 
Building,   etc.   v.   Lovings    ( 142   Pa. 

St.   121),  333. 
Bullock    v.    Mitchell    (16    W.    L.    B. 

354),  159. 
Burbee  v.  Spollen  ( 10  W.  L.  R.  494) , 

305. 


CASES. 

to   sections.] 

Burford  v.  Kursey    (48  Miss.  643), 

62. 
Burger  v.  Sullivant    (2  X.  P.  N.  S. 

327),  611. 
Burnly    v.    Stephenson     (24    0.    S. 

474),  12,  ;8. 
Burquart  v.  Hubbard    (11   0.  316), 

434. 
Bushfield   v.  Myer    (10   0.   S.  334), 

370. 
Butler  v.  Brown    (5  0.  S.  215),  92. 
Butler  v.  Birkey   (13  0.  S.  514),  9. 
Butterfield  v.  Walsh   (21  O.  S.  97), 

71. 
Butzman    v.    Whitebeck    (42    0.    S. 

223),  368. 
Byers    v.    Schlupe    (51    0.    S.   300), 

29,  154. 
Byers  v.  Wackman    (16  0.  S.  440), 

295. 


Caldwell  v.  Burton    (7  N.  P.  525),      ' 

145. 
Caldwell  v.  Caldwell  (45  0.  S.  513), 

111. 
Caldwell  v.  Carthage  (49  0.  S.  334), 

507. 
Caldwell   v.   Spellman    (7   W.   L.   J. 

7),  161. 
Caldwalader    v.    Evans     ( 1    Disney, 

585),  114. 
Calhoun    v.    Hays    (8    Watts    &    S. 

127),  297.  " 
Calhoun    v.    Price     (17    0.    S.    96), 

296. 
Callahan  v.  Rose   (2  W.  L.  B.  281), 

316. 
Callagan    v.    Burns    (57    Me.    465), 

618. 
Callaghan    v.    Callaghan     (8    CI.    & 

Finn.    374),   341. 
Callen    v.    Ellison    13    0.    S.    466), 

61. 
Callen   v.    Ellison    (13    0.    S.   455), 

63,  64. 
Callihan  v.  Rose   (2  W.  L.  B.  281), 

409. 
Calvin  v.  Bruen   (79  O.  S.  610),  31. 
Campbell  v.  English   (Wright  119), 

250. 


TABLE    OF    CASES. 
[References   are    to   sections.] 


xlix 


Campbell   v.    Park    (32    0.    S.    5G), 

400. 
Carbit  v.  Carbit   (4  W.  L.  B.  1006), 

615. 
Card,    etc.    v.    Stanage     (45    0.    S 

417),  47. 
Carden  v.  Carden    (107  N.  C.  214), 

154. 
Gardner  v.  Cone  (16  0.  S.  354),  626. 
Carey    v.    Kemper     (45    0.    S.    96), 

72. 
Carlisle   v.   Longworth    (5   O.    368), 

413,  414    426,  431. 
Carmichael  v.  State   (12  0.  S.  553), 

459. 
Carpenter  v.  Denoon  (29  0.  S.  379), 

617. 
Carr  v.  Beckett   (1  C.  C.  72),  77. 
Carr  v.  Williams    (10  0.  305),  212. 
Carroll  v.  Olmsted  (16  0.  201),  191. 
Carter  v.  Day    (59   0.   S.   96),  296, 

303,  304. 
Carter  v.  Goodin   (3  O.  S.  76),  457. 
Carter  v.  Lee   (51  Ind.  292),  212. 
Carty   v.    Fenstermacber    ( 14    0.    S. 

457),   14. 
Carty   v.    Fenstermacber    ( 14   O.   S. 

459),  92. 
Gary  v.  Kemper    (45  0.  S.  93),  42. 
Case  v.  Beauregard  (101  U.  S.  688), 

62. 
Cash   v.   Unbaugb    (22    C.   C.   409), 

65. 
Casselly  v.  Rhodes   (12  0.  88),  329. 
Cato  v.  Cato   ( [S.  C.  1890]  10  S.  E. 

1078),    337. 
Central,  etc.  v.  Lagenbacb    ( 1  N.  P. 

124),  142,  143. 
Chadsey  v.    Chadsey    (26   111.   App. 

409),  337. 
Cbaffee   v.    Foster    (52    O.    S.   358), 

407. 
Cbamberlain    v.    Jones     (114     Ind. 

458),  214. 
Cbamberlain  v.  Strong   (3  W.  L.  G. 

281),   157. 
Chapman  v.  Chapman    (53  Am.  St. 

823),   462. 
Chapman  v.  Sollars   (38  O.  S.  331), 

398. 
Chapman  v.  Sollars   (38  O.  S.  378), 

431,  432. 


Chapman   v.   The   Balton   Steel   Co. 

(4  C.  C.  242),  9. 
Chase   v.    Manhardt    (1    Bland    Ch. 

[Md.]  350),  69. 
Childs    v.    Cbilds    (10    0.    S.    339), 

366. 
Choteau  v.  Thompson  (2  O.  S.  114), 

377. 
Christian  v.  Williams   (35  Mo.  App. 

297),  9. 
Cincinnati  v.  Central    (16  W.  L.  B. 

375).  33. 
Cincinnati    v.    Central,   etc.    (25    W 

L.  B.  375),  370. 
Cincinnati      v.      Commissioners      ( 1 

Disn.  4),  564. 
Cincinnati    v.    Lingo,    et    al    ( 13    C. 

C.  337),  409. 
Cincinnati  v.   Thompson    ( 10  W.  L. 

B.  226),  343. 
Cincinnati    v.    Yatman     (30    0.    S. 

276),  401. 
City  v.  Fox   (60  0.  S.  349),  10. 
City  v.  Fox    (60  O.  S.  340),  14. 
Cites  v.  Widner  (35  0.  S.  555),  106. 
Claffin    v.    Evans    (55    0.    S.    183), 

264. 
Clapp    v.    Banking    Co.     (50    0.    S. 

528 ) ,  284. 
Clapp  v.  Bromagbam   (9  Cow.  561), 

303,  305. 
Clark  v.  Hubbard    (8   0.  382),  572. 
Clark    v.    Lindsey    (47    0.    S.    437), 

409,  474. 
Clark  v.  Strong   (16  0.  317),  56. 
Clason  v.  Ward   ( 1  N.  P.  218),  407, 

474. 
Clements    v.    Noble    (40    0.    S.    41), 

569. 
demons  v.  Clemons    (37  X.  Y.  59), 

62. 
Cleveland    v.    Ohio    (1    Disn.    469), 

157. 
Cleveland,    etc.    v.    Ball     (5    0.    S. 

568),  513. 
Close  v.   St.  Clair    (38   0.   S.  530), 

273. 
Clyde  v.  Simpson  (4  0.  S.  445).  215. 
Coal    Co.   v.    Bank    (54   0.    S.   233), 

102. 
Coates  v.  Street  (2  Ashm.  12),  298. 
Cochrun  v.   Fremey    (65  0.  S.  61), 

94. 


1  TABLE    OF 

[References  are 

Cochrun  v.  Loring  (17  0.  409),  64, 

142. 
Coe  v.  Erb    (59   0.   S.  259),  58,  83, 

94,  104. 
Coe  v.  Knox,  etc.  ( 10  0.  S.  412) ,  92. 
Coe  v.  Peacock    (14  O.  S.   190),  92. 
Coe  v.  Pequa,  etc.    (10  0.   S.   403), 

92. 
Coghlin   v.   Coghlin    (79   O.   S.   71), 

618. 
Cogshall   v.   Marine,  etc.    (63   O.   S. 

98),   92. 
Coggshall    v.    Marine    Bank     (21    0. 

S.   596),  584. 
Commercial  Bank  v.  Western  ( 1 1  0. 

444),  92. 
Compton  v.  Weder    (40  O.  S.   130), 

22. 
Conard  v.   Conard    (38   0.   S.   467), 

346. 
Conger  v.  Black   (11  0.  S.  10),  460. 
Conley  v.  Creeghton  (2  W.  L.  B.  4), 

160. 
Conn  v.  Rhodes  (26  0,  S.  644),  7. 
Conover  v.  Porter    (14   0.    S.    450), 

461. 
Conrad  v.  Everick    (50   0.   S.  471), 

94. 
Conrad   v.    Enrich    (50    0.    S.    480), 

58. 
Constable  v.  White   ( 1  Handy,  45 ) , 

159. 
Converse   v.    Starr    (23    O.    S.   493), 

611. 
Converse   v.   Starr    (23   O.   S.   498), 

611. 
Conch  v.  Cooch   (18  O.  146),  623. 
Cook    v.    Dinsmore     (5    C.    C.    391), 

Kin. 
Cook    v.    Dinsmore    (5    C.    C.    5S5), 

102. 
Cook  v.  Olds  (19  C.  C.  732),  159. 
Cook  v.  Prosser  (14  C.  C.  137),  430. 
Coons   v.    Clifford    (58   O.    S.   480), 

370. 
Cooper   v.   Cedar   Rapids   Tower   Co. 

142   [a.  298),  309. 
Cole  v.  Mathews   (38  W,  L.  P..  223), 

465. 
Coles    v.    Coles    (13    X.    J.    Eq.    365), 

3:!  3. 
Collier  v.  Beckley  (33  0.  S.  523),  56. 
Collier's  Will    (40  Mo.  287),  302. 


CASES. 

to   sections.] 

Collins  v.  Baltimore,  etc    (7  N.  P. 

270),   15,   26,  33. 
Collins   v.   Collins    (19    0.   S.   471), 

566,  569. 
Colwell,  Admr.  v.  Bank   (2  0.  229), 

141. 
Corcoran    v.    Loring     (17    O.    409), 

61. 
Core  v.  Oil,  etc.   (40  0.  S.  636),  51, 

52. 
Corey  v.  Hayes   (13  C.  C.  185),  219, 

336. 
Corey  v.  Hayes  (13  C.  C.  185),  336. 
Corry  v.  Lamb  (45  0.  S.  203),  462. 
Corry  v.  Lamb  (43  0.  S.  390),  476. 
Corwin  v.  Benham  ( 2  0.  S.  37 ) ,  65. 
C.orwin  v.  Durham  (2  0.  S.  36),  94. 
Corwine   v.   Mace    (36    0.    S.    125), 

315,  346. 
Cory    v.    Fleming    (29    0.    S.    147), 

569. 
Costteman    v.    Relfe    (50   Mo.    583), 

245. 
Cote  v.  Peck    (30  W.  L.  B.  5),  215. 
Cottage,  etc.  v.  Bacon  (2  N.  P.  295), 

426. 
Coudon  v.  Hurford   (4  0.  133),  154. 
Couster   v.   Couster    (7   X.   P.    154), 

338,  341. 
Covington  v.  Sargeant    (27  0.  233), 

62. 
Craig  v.  Fox   (16  0.  563),  107,  118. 
Craig  v.  Fox   (16  O.  564),  114,  118. 
Craig  v.  Oakes   (4  Dana  6011),  342. 
Crane  v.  Ford  (Hopk.  [N.  Y.]   114), 

288. 
Creaser    v.    Young    (31    0.    S.    57), 

159. 
Creed   v.   Lancaster   Bank    (  1    0.    S. 

1),  341. 
Creditors    v.    Search     (3    W.    L.    M. 

320).   Kill. 
Creighead  v.  Pike  (4  Rec.  199),  296. 
Creps  v.   Baird    (3   0.  S.  277).  65, 

398. 
(rest  wait  v.  Dixon  (5  Adol.  &  Sclc's 

834),  303. 
Crocket   v.  Crocket    (52  W.  W.   Rep. 

299),   324. 
Crockett  v.  Crockett   (2  0.  S.   181), 

473,  482. 
Crooks    v.    Finney    (39    0.    S.   57), 

316. 


VBLE   OF    CASES. 
[References  are  to  sections.] 


Crosby   v.    Allyn    (5-Grienal    453), 

343. 
Crumb  v.  Treuber   ( 2  Cleve.  L.  Rep. 

257),  142. 
Culver  v.  Culver  (2  Root,  278),  303, 

305. 
Culver  v.  Harper  (27  0.  S.  (17),  460. 
Culver   v.    Harper    (27    0.    S.    464), 

461,  462    465. 
Culver    v.    Rogers    (33    0.    S.   537), 

570. 
Cummins    v.    Nutt     (Wright,    713), 

297. 
Cunningham    v.    Harper    (W.   366), 

586. 
Curren  v.  Taylor    (19   0.  56),  302. 


Dabney  v.  Manning   (3  O.  321),  70, 

34*2. 
Dalton  v.  Davis  (18  C.  C.  878),  223. 
Daniels  v.  Stevens   (1!)  O.  222),  78. 
Daniler   v.   Daniler    (1    Vein.    724), 

463. 
Darling  v.  Hippie  (12  0.  C.  D.  754), 

582. 
Darling    v.    Hippie     (12    0.    C.    D. 

734),  588. 
Darlington    v.    Compton    (20    C.    C. 

242).  567,  569,  572. 
Darrow  v.  Calkins  (154  N.  Y.  503), 

464. 
Davacht  v.  Newson    (3  0.  57 ) .  585. 
Davenport  v.  Widow    (6  O.  S.  466), 

465. 
Davidson  v.  Wolf   (9  O.  74).  302. 
Davis  v.  Brown    (4  W\  L.  M.  272), 

462. 
Davis    v.    Duffie    (8    Bosw.    [N.    Y.] 

617),  9. 
Davis  v.  Hines  (6  O.  S.  473).  380. 
Davis  v.  Messenger    (17  O.  S.  231), 

94. 
Davis   v.   Powell    (13    O.   308).   594. 
Davisson   v.    Burgess    (31   0.  >S.   78), 

219. 
Dawson  v.  Lawrence  (13  O.  S.  536), 

296. 
Dawson   v.   Lawrence    (13    O.   544), 

304,  330. 


Dayforth   v.   Talbot    (7    B.    Monroe 

623),  302. 
Dean  v.  Lowenstein    (6  C.  C.  587), 

215. 
Dean   v.   Yates    (22  O.  S.  388),   160. 
Defrance   v.  Johnson    (26  Fed.   Rep. 

891),  459. 
Delaney   v.   McFadden    (7  W.  L.  B. 

267),  295,   305. 
Dellinger's  Appeal   (35  Pa.  St.  257), 

463. 
Dengenhart    v.    Cracraft    (36    <  >.    S. 

572),  250. 
Dennison  v.  Foster   (9  O.  130),  299. 
Denton  v.  Nanny    (8  Barb.  S.  C.   R. 

624),  457. 
Derckson   v.   Reid    (2   Handy    159), 

101. 
Derush  v.  Brown   (8  O.  415),  45S. 
Desnoyers    v.    Dennison     ( 19    C.    P. 

320 | .  — 
Dettor   v.    Holland    (57    O.   S.  505), 

569. 
Devacht  v.  Newsome   (  3  O.  57 ) ,  587, 

597. 
Deval  v.  Culver    (1   W.  L.  M.  588), 

24. 
Devine    v.    Taylor     (12    C.    C.    723), 

381. 
Dew   v.    Reid    (52    O.    S.   523).   611. 
Dew   v.    Reid    (52   O.    S.    526),    612. 
Dew  v.  Reid   (52  0.  S.  519),  621. 
De  Witt  v.  DeWitt    (67  O.  S.  350), 

496. 
Dickey  v.  Bcaty    i  14  O.  S.  389),  69. 
Diller   v.    Roberts    (13    Serg.    &    R. 

00).   27. 
Dingman  v.  Dingman  (39  O.  S.  172), 

461. 
Directors,    etc.    v.    City     (15    O.    S. 

409),    14. 
Ditlow   v.    Cluncy    (22    0.    S.    436), 

341. 
l)Man  v.  Bitch-   (49  0.  S.  588),  206. 
Duan  v.  Bitely   (49  O.  S.  594),  207. 
D6bell  v.  Looker  (1  Hand.  574).  154. 
Docterman   v.    Elder    (27    W.   L.  B. 

195),  297.  324,  461. 
Dodd  v.  Mt.  Adams,  etc.    (20  C.  C. 

709),  21. 
Dodson  v.  Cincinnati  (34  O.  S.  276), 

504. 
Doe  v.  Dugan    (8  O.  87),  320. 


lii 


TABLE  OF 
[References  are 


Doe  v.  Dugan   (8  0.  106),  387. 
Doe  v.  Eall   (7  O.  [St.  2]  71),  584. 
Doe  v.  Pendleton    (15  0.  735),  366. 
Doerr  v.   Forsythe    (50   0.   S.   72G), 

496. 
Doll  v.  Barr   (55  0.  S.  113),  101. 
Dony  v.  Clark   (55  0.  S.  33),  214. 
Douglass  v.  Massie   (16  O.  271),  55, 

61. 
Douglass  v.  Massie  (26  0.  271),  123. 
Douglass  v.  McCoy    (5  0.  522),  61. 
Douglass  v.  McCoy   (5  0.  527),  454, 

455. 
Douglas  v.  Dangerfield   (10  0.  152), 

434. 
Douglas  v.  Dangerfield   (14  0.  522), 

426. 
Douglas  v.   Scott    (5   0.    194),   569, 

587. 
Douglas  v.   Scott    (5   0.   195),   569. 
Dow   v.   Jewell    (1    Foster    [N.   H.] 

486),  41. 
Dow  v.  Jewell   (18  N.  H.  340),  297. 
Downs  v.  Long   (79  Md.  382),   191. 
Doyle  v.  Brenneman   (2  N.  P.  415), 

71. 
Drea  v.  Carrington    (32  0.  S.  595), 

19. 
Dresback    v.    McArthur    (7    0.    [pt. 

1st]  706),  585,  597. 
Dresback  v.  Stein  (41  O.  S.  70),  65. 
Drew  v.  Clark   (Cook  [Tenn.]  373), 

69. 
Droone   v.    Fanning    (2    Johns.    Ch. 

252),  111. 
Dueber  v.  Dalzell  ( 19  W.  L.  B.  269) , 

22. 
Duhme  v.  Meliner    (18  C.  C.  707), 

567,  569. 
Dukes  v.  Dukes  (4  C.  C.  508),  194, 

195. 
Dukes  v.  Dukes   (5  C.  C.  510),  454. 
Duncan   v.  Duncan    (10  O.   S.   181), 

459. 
Dunlap  v.  Mitchell  (10  O.  118),  125. 
Dunlap  v.  Robinson  (12  0.  S.  53»), 

r.:>. 
Dunlevy  v.  Schwartz  (17  O.  S.  640), 

159. 
Dunn  v.  Hazlett    (4  O.  S.  435),  9. 
Dunn  v.  Rankin  (27  O.  S.  132),  384. 
Dun^.th  v.  Bank   (6  O.  76),  480. 
Dunseth  v.  Bank   (6  0.  79),  480. 


CASES. 

to  sections.] 

Durango  v.  Durango  (23  N.  Y.  331), 

460. 
Durlington's    Appeal     ( 13     Pa.    St. 

430),  297. 
Dutro  v.  Wilson   (4  0.  S.  101),  377. 
Duttenhofer   v.   Duttenhofer    ( 12    0. 

D.  N.  P.  736),  462,  463. 
Duval   v.    Feiviger    (1    C.    S.    C.   R. 

286),  462. 
Dwelle  v.  Hinde   (18  C.  C.  618),  9. 
Dwyer  v.  Gerlough    (31   I.  S.  158), 

461. 
Dyer  v.  Garlow  (31  0.  S.  158),  371. 


Edwards  v.  Edwards  (24  0.  S.  202), 

378. 
Edwards    v.    Davis     (30    W.    L.    B. 

283),   614. 
Egan  v.  Lumsden  (2  Disn.  168),  141, 

142,  154. 
Eggleston    v.    Harrison     (61    0.    S. 

397),  262. 
Eldridge,  et  al.  v.  Forester  (7  Mass. 

252),  460. 
Elliott  v.  Lowhead    (43  0.  S.   171), 

31,   145. 
Elliott  v.  Platter  (43  0.  S.  198),  28, 

29,  462. 
Ellithorpe  v.   Buck    (15   0.   S.   72), 

577. 
Ellithorpe   v.   Buck    (17   0.   S.   72), 

568. 
Ellwood    v.    Northup     (107    N.    Y. 

172),  347. 
El  rod  v.  Bass   (1  C.  C.  38),  306. 
Elstner   v.   Fisher    (12   C.   C.   517), 

346. 
Ely  v.  McGuire    (2  0.  223),  584. 
Emmet   v.    Brophy    (42    0.    S.   82), 

367. 
Emmet  v.  Yeigh  (12  O.  S.  335),  159. 
Enas  v.  Capps   (2  111.  257),  41. 
Endel   v.   Leibrock    (33   0.   S.  254), 

48,  51,  143,  159. 
Endel   v.   Leibrock    (33   0.   S.  267), 

159. 
Endel   v.   Leibrock    (33   0.   S.   269), 

50. 
Endel   v.   Leibroke    (33   0.   S.   270), 

71. 


TABLE   OF    CASES. 
[References  are   to   sections.] 


liii 


Enig   v.    Commonwealth     (5    X.    P. 

471),  503. 
English    v.    Moneypenny     (G    C.    C. 

554),  47,  342,  346.  ' 
Ennis  v.  Ennis    (Dayton  117),  461. 
Ensign  v.  Rogencamp   (13  Neb.  30), 

24. 
Erwin  v.  Shuey   (8  0.  S.  509),  364. 
Estabrook  v.  Ryan    (52  0.  S.  318), 

407. 
Estate    of    Barrett     (49    W.    L.    B. 

222),  459. 
Estate  of  Nicholson   (2  X.  P.  X.  S. 

189),  617. 
Estate  of  Nicholson    (49   W.   L.   B. 

379),  617. 
Evans   v.    Hies    (7    O.   S.   233),   30. 
Evans  v.   McGlassen    (18   La.   150), 

71. 
Exchange  Bank  v.  Eddy    (10  W.  L. 

B.  389),  370. 
Express  Co.  v.  State   (55  O.  S.  69), 

35. 


Falles   v.    Loughlad    (14   W.    L.    B 

56),   65. 
Farmer   v.    Wallis    (45    0.   S.    152) 

296,  300. 
Farron  v.  Robinson   (17  O.  S.  242) 

211. 
Farseman  v.  Haag   (38  O.  S.  102) 

246. 
Farwell  v.   Root    (36  W.   L.   B.   7) 

29. 
Feather   v.   Strohecker    (3   Penn.   R 

505),  324. 
Fee    v.    Big,    etc.     (13    O.    S.    563) 

30.  33. 
Fels  v.   Fels    (1   C.  C.  420),  — 
Fergus  v.  Nash   (48  \Y.  L.  B.  442), 

4.")!). 
Ferguson    v.    Carter     (9    Mo.    App. 

497),  212. 
Ferrell  v.  Anchauer    (14  O.  S.  80), 

104. 
Feuchter   v.   Keyle    (48   O.  S.   357), 

611,  617. 
Fideldy    v.    Disederana     (26    O.    S. 

n 1 4 ) ,  us. 

Field    v.    Seheiplin    (17    Johns.    Ch. 
154),  245. 


Fike  v.  Guen    (64  X.  C.  665),  212. 
Finch   v.    Edmenson    (9    Tex.   504), 

206. 
Fincli  v.  Finch   (10  O.  S.  501),  455, 

463. 
Finck  v.  Evers    (25  O.  S.  82),  7. 
Finner  v.  Cincinnati    (4  X.  P.  182), 

507. 
Fin-stone  v.  Firestone  (2  O.  S.  415), 

458. 
Fishburn  v.  Mulott  (72  S.  Car.  572), 

13. 
Fisher  v.  Long   (19  W.  L.  B.   139), 

310,   464. 
Fiscus  v.  Moore  (121  Ind.  547),  212. 
Fitch    v.    Campan    (31    O.    S.    646), 

53. 
Fitch  v.  Heirs    (2   O.  78),   114. 
Fitche  v.  Campman   (31  O.  S.  646), 

26. 
Fithian  v.   Corwin    (17   0.   S.   110), 

365. 
Fitzpatrick  v.   Forsyth    (7   0.  L.   R. 

411),  426,  431. 
Fitzgerald  v.  Grinwell  (64  So.  261), 

154. 
The    Fleckmeyer,    etc.    v.    The    Com- 
mercial, etc.    (7  N.  P.  613),  34. 
Fleischman  v.  Walker   (91  111.  3 IS), 

60. 
Fleming    v.    Jordan     (28    W.    L.    B. 

332),  461. 
Fletcher  v.  Fletcher   (15  C.  C.  273), 

56. 
Fletcher    v.    Huntington    (8    X.    P. 

333),  455,  473. 
Follett  v.  Hall    (16  0.  111).  94. 
Folsom   v.   Rhodes    (22   0.   S.   435), 

462. 
Foorman  v.  Wallace    (75  Cal.  552), 

71. 
Foote  v.  Cincinnati  (110.  408),  513. 
Foran  v.  Robinson    (17  0.  S.  243), 

335. 
Ford  v.  Ford  (Walker  [Miss.]  505), 

19. 
Ford  v.  Lanman    (W.  437  K    155. 
Ford  v.  Langel   (4  0.  S.  46  1  J   588. 
Forest  v.  Jelke   (7  ('.  C.  :i:;  I,  580. 
Forest   v.  Jelke    (7   C.   C.   25).   588. 
Fosdick  v.  Barr   (3  0.  S.  471),  123, 

364. 
Foster  v.  Douglass   (8  0.  87),  61. 


liv 


TABLE   OF 
[References  are 


Fowler  v.  Lessee   (2  O.  S.  270),  49. 
Fowler  v.  Whiteman   (2  0.  S.  270), 

61. 

Fowler  v.  Whitehead   (2  O.  S.  271), 

588. 
Fox  v.  Fostoria   (14  C.  C.  471),  9.   . 
Fox  v.  Pratt   (27  O.  S.  515).  462. 
Fox  v.   Pratt    (27   0.   S.  512).   461, 

465. 
Fox  v.  Keeder   (28  O.  S.  181),  5G. 
J" razier    v.    Stenrod    (7    Iowa    339), 

206. 
Fredrick  v.  Pickett    (19  Wis.  541), 

245. 
Freeman   v.   Allen    (17    0.    S.   527), 

303,  316. 
Fremper  v.  Barton  (8  O.  418),  341. 
French  v.  Millard  (2  0.  S.  45),  65. 
Frische  v.  Cramer  (15  O.  125),  366. 
Fritz  v.  Fritz  (16  0.  S.  218),  307. 
Frost   v.   Brisbane    (19   Wend.    14), 

154. 
Fryman    v.    Fryman    (9   C.   C.   95), 

336. 
Fulton  v.  Hooker   (7  W.  L.  B.  48), 

96. 


G 


Galbraith    v.   Tracy    (153   111.   54), 

464. 
Galpin  v.  Page  i  IS  Wall.  350).  245. 
Galti«  v.  Bagle  (65  Barb.  383),  309. 
Gamble   v.   Warner    (16  0.  371),  28. 
Gamble  v.  Wise   (3  W.   1-  B.  430), 

507. 
GanB  v.  Thompson    (11   O.  S.  579). 

l.v.i. 
Garlick   v.    Strong    (3   Paige,   440). 

163. 
Garner  v.  White  (23  ().  S.  192).  159. 
Garrell  v.  Kelsy  (40  I  >.  s.  117),  92. 
Garretson  v.  Hart  (6  W.  L.  J.  315), 

134. 
<  larvin  \.  <  lolumbus   I  •">  X.  P.  2::7  > , 

504. 
Garj   v.  May   I  16  0.  66),  51,   196. 

I  v   \.   Separatis,  etc.    (13  < ».  S. 

Ill  i.  295. 

|ya    v.    Separatists    (13    G    S. 

I  15),  331. 
Gass  \.  Frohman   (8  L.  R.  A.  102), 

471. 


CASES. 

to   sections.] 

r 

Gel  strop  v.  Moore   (26  Miss.  206), 

206. 
Genell  v.  Herons   (70  O.  S.  309),  92, 

97. 
Genet    v.    Talmage     (1    Johns.    Ch. 

561),  245. 
Genin  v.   Greer    (10  O.  211),   10. 
German  v.  Doren  ( 49  W.  L.  B.  242 ) , 

306. 
Gibbin  v.  The  Kanawha,  etc.,   (2  C. 

S.  C.  R.  75 ) ,  34. 
Gibbon  v.  Dougherty  ( 10  O.  S.  365), 

56. 
Gibson  v.  Chillicothe,  etc.   (11  O.  S. 

311),  92. 
Gibson  v.  Chillicothe  (11  O.  S.  321), 

92. 
Gibson  v.  Nonwalk    (13   C.  C.  431), 

504. 
Giddings  v.   Barney    (31    O.    S.   80), 

368,    374. 
Giesy  v.   Cincinnati    (4  O.   S.  326), 

503,  513. 
Giesy    v.    Railroad    (4    O.    S.   308), 

525. 
Gilbert  v.  Gilbert  (13  C.  C.  35),  47. 
Gilbert  v.  Armstrong  (Dayton  149), 

65. 
(Jill  v.  Pelkev    (54  O.  S.  349),   106. 
(Jill   v.   Pelkey    (54   O.  S.   348),  69, 

123. 
Gillett  v.  Miller    (12  C.  C.  209),  7, 

461. 
Gillett    v.    Miller    (12    C.    C.    212), 

458. 
Gillespie's       Lessee       v.       Johnson 

(Wright  232),  297. 
Gilliland  v.  Sellars    (2  O.  S.  223), 

60. 
Gilpin   v.  Williams    (25  O.   S.  283), 

191. 
(J  lad  well    v.    Hume    (18    C.    C.   845), 

577. 
Glaney   v.   Glaney    (17   O.   S.   135), 

616. 
Glass    v.    Greathouse    (20   O.    503), 

125. 
Glemser  v.  Glemser    (.5  N.  P.   170), 

342. 
Glenny  v.  Langdon    (98  U.  S.  20), 

294. 
Glover  v.  Ruffian  (6  O.  255),  316. 
Glidden  v.  Joy  (8  C.  C.  157),  157. 


TABLE   OF    CASES. 
[References  are   to   sections.] 


lv 


Godfred  v.  Godfred    (30  0.  S.  53), 

30. 
Goebel  v.  Bank  (3  N.  P.  109),  18. 
Goodin    v.    Canal    (18    0.    S.    169), 

573. 
Goodman    v.    Cincinnati     (2    Disney 

176),  370. 
Goodman    v.    McCall     (2    C.    S.    C. 

R.  159),  94. 
Goodrich  v.  Haner  (8  W.  L.  B.  11), 

7. 
Gople  v.  Howard    (12   0.    S.    165), 

160. 
Gotschall   v.  Ilohler    ( 1   Iddings   T. 

P.  D.  27),  370. 
Gould  v.  Rose  (17  C.  C.  181),  28. 
Goudy  v.  Shank   (8  0.  415)   320. 
Goundie  v.  Northampton  Water  Co. 

(7  Barr.  278),  303. 
Grady  v.  Gasline  (48  0.  S.  667),  31. 
Graham    v.    Burgraz    (  12    0.    C.    D. 

747),  573. 
Graham    v.     Burgrozz     ( 120    C.    C. 

747),  569. 
Grant  v.  Ludlow    (8  <_.  S.  1;    14  0. 

8.    518),    455. 
Great  Northern  v.  Mosop    ( 17  Com. 

B.    140),   62. 
Gregg  v.  Weavor  ( 6  0.  S.  547 ) ,  458. 
Green  v.  Cherrington  (  16  O.  S.  548), 

364. 
Green   v.   Graham    (5   0.   264),  310, 

404. 
Green  v.  Green  ( 1  0.  535),  310,  464. 
Green  v.  Green   (5  O.  279),  611. 
Green  v.  Green   (5  O.  278),  622. 
Griffin  v.  Bixby  (12  N.  H.  454),  69. 
Griffin  v.  Underwood  ( 16  0.  S.  389) , 

321. 
Griswold    v.    Frink    (22    O.    S.    79). 

464. 
Grogan   v.   Garrison    (27   0.  S.   52). 

460. 
Grogan   v.   Garrison    (27   0.  S.  59), 

462. 
Gross  v.  Howard   (52  Me.  192),  206. 
Grosvenor  v.  Austin   (6  0.  103),  93. 
Gumbler    v.    Tremble    i  14    0.    323). 

56. 
Gurley   v.   Armentrout    (6   C.   ('.   N. 

S.  156),  627. 
Gury   v.   Tannenwald    (18    O.    481), 

156. 


Gutshell  v.  Salsbury  (W.  127),  65. 
Cuyton  v.  Shane  (7  Dana  498),  342. 
Gwyne  v  Cincinnati  (3  O.  24),  46. 
Gwvnn  v.  Nesswander  (20  O.  552), 
*  426. 


Hackworth    v.    Robinson    (31    0.    S. 

655),  13. 
Hadley  v.  Dunlap  ( 10  0.  S.  1 ) ,  9. 
Hagerman  v.  Ohio    (25   0.   S.    186), 

114. 
Hagerty  v.  Columbus    (14  O.  D.  N. 

P.  1),  65. 
Haggart  v.  Morgan   (1  Seldon  422), 

154. 
Hall  v.  Hall    (32  0.  S.   184),  584. 
Hall  v.  Lowry.  (Tappan,  149),  28. 
Hall  v.  Morris  ( 13  Bush,  323 ) .  343. 
Hamilton  v.  Miller   (31  0.  S.  87),  7. 
Hamlin   v.   Bevans    (7    0.    [pt.    1]), 

56. 
Hammond    v.    Davenport    (16    0.    S. 

177),  49. 
Hammond    v.    Davenport    (16    O.    S.' 

182),  61. 
Hancock    v.    Titus    (39    Miss.    224), 

302. 
Handy   v.    Insurance   Co.    ( 37    0.   S. 

366),   36. 
Handy  v.  Insurance  (37  0.  S.  367), 

31. 
Handy  v.    Insurance   Co.    (37    O.  S. 

370).   18. 
Hannell  v.  Smith    (15  0.   134),  434. 
Harbick   v.   Toledo    (11    O.   S.   219), 

504. 
Hardy  v.  Somers  (  10  Gill  &  J.  316), 

297. 
Harkrider   v.    Leiby    (4   0.   S.  002). 

365. 
Tlarman   v.   Kelly    I  19  O.   502).  30S, 

346. 
Harmon  v.  Stockwell   (9  0.  93).  421. 
Harper  v.  Crawford   (  13  0.  13),  584. 
Harper   v.   Harper    (92   X.   C.   300), 

337. 
Harris  v.  Alderson    (4  Sneed  250), 

302. 
Harrison  v.  Carbon    (14  Wyo.  246), 

9. 


Ivi 


TABLE   OF 
[Rererences  are 


Harrison  v.  Carter    (11  0.  S.  339), 

588. 
Harrison    v.    Chalfield     (14    C.    C. 

599),  264. 
Harris  v.  Harris   (36  Barb.  88),  62. 
Harrison   v.    King    (9    O.    S.   388), 

159. 
Harrison  v.   Sabina    (1   C.  C.   149), 

509. 
Hart  v.  Blackington   (W.  386),  594. 
Hart  v.  Globe,  etc.    (37   O.   S.   76), 

380. 
Hart  v.  Johnson  (6  0.  87),  586,  587. 
Hart  v.  Johnson  (6  0.  540),  594. 
Harvey  v.  Jones   (1  D.  65),  573. 
Hastings    v.    Columbus     (42    0.    S. 

585),  24. 
Hatch   v.   Eailroad    (18   0.    S.   92), 

513. 
Haven   v.   Horton    (53    O.    S.   345), 

207. 
Havens   v.  Horton    (53   0.   S.   542), 

276. 
Havens  v.  Horton    (53   0.   S.   342), 

371. 
Hawley  v.  Bradford   (9  Paige  200), 

465. 
Bay  v.  Kites    (11  0.  254),  346. 
Haymaker    v.    Haymaker     (4    0.    S. 

'  272).  588. 
Hay  ma  n  v.  Beverstock  (8  C.  C.  477), 

141. 
Baynes  v.  Baker  (5  O.  S.  253),  92. 
Hay.io    v.    llaynes    (33    0.    S.   618), 

611. 
Haynes   v.   Koynes    (33  0.  S.  598), 

617,  624. 
Hays  v.  Bank   (W.  563),  28. 

Ilayw I     v.     Haywood     (80    X.     C. 

12),    2H(i. 
lira, I   v.    Daniels    (38    Kan.    1),  9. 
Headley  v.  Robey   (6  0.  522),  92. 
Heads   \.    Sims    (29    [nd.   574),   69, 

101. 
Heidenheimer    v.    Ogden     (1    Disn. 

35]  i.  156'. 
Heikes    \.    Peepaugh    I  I    W.    L.    J. 

542),   180. 
Heirs  \.  i  mith   (3  0.  355),  41. 
Heller    v.     Hawley     (S    (  .    C.    X.    S. 

265),  586. 
Helmig  v.  Meyer   (8  X.  P.  31),  302, 
307. 


CASES. 

to   sections.] 

Hempy  v.  Ransom    (33  O.  S.  312), 

77. 
Henderson  v.  Stettner  (31  Kan.  56), 

146. 
Herbert  v.  Bates  (13  W.  L.  B.  565). 
Herf  v.  Shulze   (10  D.  263),  7. 
Hershizer    v.    Florence     (39    0.    S. 

516),  303. 
Hieatt  v.  Black   (14  C.  C.  194),  307. 
Hieatt  v.  Black  (16  C.  C.  194),  307. 
Higginbotham    v.   Thomas    (9    Kan. 

328),  245. 
Hill  v.  Bloom    (41  N.  J.  Eq.   276), 

337. 
Hill  v.  Kling  (4  0.  137),  27. 
Hill  v.  Meyers   (46  O.  S.  183),  296. 
Hill  v.  Thatcher   (3  How.  Pr.  407), 

3. 
Hiller  v.   Hohman    (12   C.   C.   216), 

383. 
Hillgartner    v.    Gebhart    (25    0.    S. 

557),  482. 
Hinde  v.  Whiting  (31  0.  S.  53),  346. 
Hinde   v.   Whiting    (31   0.   S.  531), 

346. 
Hines  v.  McDermitt   (91  X.  Y.  451), 

459. 
Hinton  v.  McNeil  (5  0.  509),  62. 
Hitesman  v.  Donell   (40  0.  S.  287), 

364. 
Hogg  v.  Bierman  (41  0.  S.  81),  295, 

301. 
Hoglan   v.    Cohen    (30    0.    S.   436), 

410. 
Hollester  v.  Bennett  (9  0.  83),  421. 
Holliday  v.  Clun  (9  C.  C.  280),  154. 
Holloway    v.    Heddington     ( 8    Sim. 

324),  341. 
Holmes  v.  Gardiner   (15  0.  S.  167), 

:u;.->. 
Holmes    v.    Greene     (7    Cray,    299), 

154. 
Holl   v.  Lamb   (17  0.  S.  374),  623. 
Holt  v.  Kami)   (  17  O.  S.  375),  627. 
Holroh   v.   Lasance    (63   0.   S.  58), 

(ill. 
Holtz  v.   Dick    (42  0.  S.  23),  459. 
Homo,    etc.,    v.    Haskins     (6    X.    P. 

274),    136. 
Homer  v.  Myers  (29  W.  L.  B.  403), 

309. 
Hood  v.  Brown  (2  0.  266),  364. 


TABLE   OF   CASES. 
[References  are   to  sections.] 


lvii 


Hoover  v.  Gibson    (24   0.   S.  380), 

160. 
Hoover   v.    Haslage    (5    N.   P.    90), 

139. 
Hornback  v.  Cincinnati,  etc.    (20  0. 

S.  81),  584. 
Horstman  v.  Eitter    (0  N.  P.  470), 

309. 
Hosiner  v.  Sturgis    (31   0.  S.  657), 

341. 
Houghton     v.     Houghton     (  14     Ind. 

505),  463. 
Householder  v.  Kansas,  etc.    (6  X. 

P.  520).  37. 
Houts  v.  Showalter   (10  O.  S.  125), 

32a. 
Houts  v.  Showalter   (10  O.  S.  127), 

107. 
Howard  v.  Levering   (8  C.  C.  614), 

9,  572. 
Howe  v.  Fuller    (19  O.  51),  302. 
Howe  v.   Hartness    (11   0.   S.  449), 

56. 
Hoyman    v.     Beverstock     (8    C.    C. 

473),    156. 
Hubbard  v.  Clark    (8  0.   3S2),  573. 
Hubbard  v.  Redort  (3  Vt.  207),  297. 
Hubbell  v.  Admr.    (S  0.  120),  71. 
Hubbell    v.    Broadwell    (8    0.    120), 

70. 
Hul.st  v.  Bates   (13  W.  L.  B.  565), 

588. 
Hughy  v.  Horrel    (2  0.  231).  413. 
Hull    v.    Standard   Coal   &   Iron   Co. 

(7  X.  P.  157),  18. 
Humphries    v.    Hoffman    (33    0.    S. 

395  i.   77,  433. 
Hunter    v.    Borck    (51    0.    S.    320), 

399. 
Hurst  v.  Fisher  (64  0.  S.  530).  125. 
Hutchiis  v.   Davis    (68   0.   S..  168), 

461. 
Hutchins  v.  Davis    (68  0.   S.   160), 

464. 
Hutchinson    v.    Hutchinson    (15    0. 

301).  99. 


In  re  Alley    (25  W.  L.  B.  89),  564. 
In  re  Andrews   (62  X.  —  1),  616. 
In   re  Beck    (11   0.  F.  D.  440).  375. 
In  re  Blair   (84  Hull  581),  616. 


'in  re  Brewer   (3  X.  P.  12),  273 
In  re  Burrows    (8  N.  P.  358),  614. 
In    re    Cogly    (107    Fed.    Rep.    73), 

294. 
In  re  Commercial  ( 6  O.  D.  105  i .  268. 
In  re  Conway   (124  X.  Y.  455).  616. 
In   re  Counsel   Fees    (7   X.  P.  624), 

627. 
In  re  Davis   (21  C.  C.  720),  464. 
In   re  Estate  of  Cavagna    (S   X.   P. 

557),  335. 
In  re  Estate  of  De  Serissy   ( 8  X.  P. 

694),  334. 
In  re  George  (5  C.  C.  98),  524.  528. 
In   re   Irwin    (71   O.   S.  396),   61. 
In  re  Jones  (5  X.  P.  102),  267. 
In   re  Mahony    (34  Hun   501),  206. 
In  re  Mills    (7  X.  P.  507),  263. 
In  re  O'Xeil    (91  X.  Y.  516),  616. 
In  re  Perrin   (4  X.  P.  262),  264. 
In   re  Railway  Co.    (19  C.  C.  308), 

564. 
In    re    Reynolds'    Estate    (7    X.    P. 

626),  302,  336. 
In  re  Roberts  (111  X.  Y.  372).  337. 
In   re  Slane    (42  W.  L.  B.  89),  105. 
In  re  Slyer  (3  Am.  Bank  Rep.  124), 

294* 
In  re  Underbill   (21  W.  L.  B.  270), 

614. 
In  re  Walke    (110  Cal.  37),  616. 
In  re  Whitney  (153  X.  Y.  250).  616, 
In   re  Will   Contest    (7   X.   P.   288), 

627. 
In  re  Worstall   (6  X.  P.  526  i .  92. 
Insurance  Co.  v.  Sampson   (38  O.  S. 

672).   70. 
I  run.  etc.  v.  Ironton   (10  O.  S.  200), 

504. 
Iron,  etc.  v.  Murray  (38  0.  S.  323), 

376. 
Irwin    v.    Jacques    (71    0.    S.    305), 

611. 
Irwin  v.  Jeffars    (3  0.  S.  389),  70, 

78, 
Irwin  v.   Smith    (17   0.   243).  56. 
[sham  v.  Gibbons   (1  Bradford  69), 

154. 


Jackson  v.  Edwards   (7  Pais*e  3S6), 
324. 


lviii 


TABLE    OF 
[References   are 


Jackson  v.  Jackson   (16  0.  S.  163), 

563. 
Jackson  v.  McGruder    (51   Mo.  55), 

212. 
Jackson  v.  Pierce  (10  Johnson  413), 

343. 
Jackson    v.     Woltermeir     (5      Cow. 

301),  460. 
Jacobson   v.    Miller    (41    Mich.   90), 

62. 
Jacques  v.   Commissioners    (2   Disn. 

121),  462. 
Jashenosky    v.    Volraith    (59    O.    S. 

540),   123. 
Jefferson   v.    Pursell    (8    Rec.    744), 

15". 
Jeffries     v.     Jeffries      (1     Craig     & 

Phelps  138),  341. 
Jeffry  v.  Yoxtheimer  ( 12  C.  C,  568), 

468. 
Jelke  v.  Goldsmith    (52  O.  S.  499), 

78. 
Jenk  v.  Howland  (3  Gray  537),  342. 
Jenkins    v.    Artz     (7    N.    P.    371), 

572. 
Jennings   v.   Jenkins    (9   Ala.   285), 

212. 
Jennings    v.    Wood    (2    O.    D.    261), 

364. 
Jewett  v.  Fieldheiser  (68  O.  S.  523), 

454,  457,  461. 
Jewett  v.  Fieldheiser  (68  0.  S.  534), 

468. 
Jewett    v.    Perette     (127     Ind.    97), 

309. 
Johns  v.  Johns    (1   C.  S.  350 ) .  462. 
Johnson  v.  Johnson    (1   C.  C.  522), 

463. 
Johnson    v.    Petitt    (1    C.    S.    C.    R. 

25),  407. 
Johnson  v.  Stewart   (29  O.  S.  498), 

432. 
Jones  v.  Allen    (6   N.  P.  518),  467. 
Jones  v.  Uevore    (8  O.  S.  430),  474. 
Jones  v.  Jones   ( S  O.  S.  430),  462. 
Jon.-   v.    Kilbourne    (4   O.   S.   401), 

263. 
Jones  v.  Stanton   (II  Mo.  433).  324. 
Jones  v.  Timmons    '21   O.  S.  596), 

584. 
Jones  v.  Wright  (1  C.  C.  N.  S.  61), 
193. 


CASES. 

to   sections.] 

Jordan    v.    Cheney     (74    Me.    359), 

365. 
Jordan  v.  Jordan  (8  C.  C.  431),  346. 
Josly    v.    Spellman     (12    W.    L.    B. 

7),  401. 
Joslyn  v.  Sedan   (2  W.  L.  P.   147), 

014. 
Joyce    v.    McAvoy     (31    Cal.    274), 

569. 
Julier  v.  Julier  (62  O.  S.  109),  496. 
Julier  v.  Julier   (62  O.  S.  90),  497. 


Kane  v.  Parker    (4  Wis.  123),  314. 
Kay  v.  Watson    (17  O.  27),  52. 
Keen  v.  Hall  (31  O.  ,S.  107),  263. 
Keen    v.    Keen,    L.    R.     (3    P.    &    D. 

105,),— 
Kelbrith    v.    Diss    (24    0.    S.    379), 

95. 
Keller  v.  Carr   ( 42  X.  W.  Rep.  292 ) , 

154. 
Kelley  v.  Strayer  ( 15  Hun  97  ) ,  143. 
Kelley's  Estate   (  1  Abb.  New.  Cases 

102),    206. 
Kellogg  v.  McLaughlin    (8   O.   114), 

413,  431. 
Kelly  v.  Duffy   (31  O.  S.  437),  273. 
Kelly  v.  Vincent   (8  O.  S.  420),  90. 
Kenielly   v.    Cowee    (4   N.    P.    105), 

459. 
Kemper  v.  Campbell   (44  O.  S.  210), 

364. 
Kenly  v.  Bryan    (110  111.  562),  212. 
Keows  v.  Keows   (2  W.  L.  M.  418), 

7. 
Kerr    v.    Commissioners     (51    0.    S. 

593),   564. 
Kerr  v.  Hooks   ( W.  610).  315. 
Kerr   v.   Leydecker    (51    O.   S.   240), 

366. 
Kerr  v.  Mount   (28  N.  Y.  659),  143. 
Ketcham    v.   Fitch    (13    O.    S.   201), 

65,  410. 
Ketchum   v.    Shaw    (28    O.    S.   503), 

454,  465. 
Ketchum   v.   Shaw    (28   O.   S.  506), 

468. 
Ketherington    v.    Graham    (6    Bing- 
ham 134),  471. 


TABLE    OF    CASES. 
[References   are   to   sections.] 


lix 


Ketterman  v.  Metzger    (3   C.   C.  N. 

S.  224),  614,  615. 
Ketznuller  v.  Van  Rensellear  ( 10  O. 

S.  63),  465. 
Keyle  v.   Feuchter    (50   O.   S.   424), 

Kilgoe   v.    Crawford    (51    111.    249), 

333. 
Kilpatrick  v.   Humphries    (8   N.   P. 

245),   611. 
Kimball  v.  Homan   (74  Mich.  699), 

563. 
Kime  v.  Addesperger   (2  C.  C.  N.  S. 

27),  615. 
King  v.   Bell    (13   Neb.   409),  3. 
King   v.   Longworth    (7   0.    [Pt.   2] 

25),  370. 
King  v.  Nicholas  ( 16  0.  S.  70) ,  321. 
King  v.  Safford  (19  O.  S.  587),  368. 
Kingman  v.  Lawyer   (40  0.  S.  109), 

262. 
Kingsborough  v.  Towsley    (56  O.  S. 

458),    61. 
Kingsborough    v.    Towsley     ( 56    0. 

S.  462),  64,  69. 
Kingsbury    v.    Towsley     (56    O.    S. 

450),  62. 
Kinnear    et    al.    v.    Beatty     (65    O. 

S.  264),  563. 
Kinsey   v.    Burgess,    etc.     (4    N.    P. 

293),    14. 
Kintz  v.  Friday   (4  Dem.  540),  337. 
Kirby   v.    Kirby    (12    Cir.    D.    736), 

314. 
Kirk  v.  Whittaker    (22  O.  S.   115), 

159. 
Kitzmiller   v.  Vanrensellaer    (10   O. 

S.    63),   457. 
Kleaver  v.  Sewall  ( 33  W.  L.  B.  56 ) , 

346. 
Kling  v.  Ballentine    (40  O.  S.  391), 

454,  465. 
Knickerbocker  v.  De  Frust   (2  Page 

304),  41. 
Knight  v.  Atkinson    (2  Tenn.  384), 

62. 
Knowls   v.   Knowls    (  [Va.]    9   S.   E. 

Rep.   584),    337. 
Knox,    etc.    v.    Bowersox    (6    C.    C. 

275),  14,  17. 
■  Knox  v.  Jenks    (7  Mass.  488),  206. 
Koelsch   v.   Mixer    (52   0.   S.   207), 

59,  60. 


Koernahan    v.    Mahony     (53    0.    S. 

133),  365. 
Kotch    v.    Stephens    (1    Cleve.    10), 

114. 
Kramer  v.   Forrester    (32  W.   L.   B. 

199),  9. 
Kramer  v.   Toledo    (53   O.   S.   436), 

528. 
Kraner  v.   Forester    (1   O.   S.   619), 

13. 
Kraner    v.    Fouster    (32    W.    L.    B. 

199),  367. 
Krug    v.    Bishop     (44    O.    S.    221), 

77. 
Krumberg   v.   Cincinnati    (29    0.   S. 

69),  509. 
Krusella  v.  DeCamp  (15  C.  C.  494), 

83. 
Kuhm   v.   Neiberg    (40  O.   8.   631), 

273. 
Kuntz     v.      Boudendestle      ( Dayton 

224),  617. 
Kyde   v.    Exchange   Bank    (56   Neb. 

557),   13. 
Kyle  v.  Thompson    (11   O.  S.  616), 

364. 


LafTerty  v.  Byers    (5  O.  458),  413, 

414,  434. 
Lafferty    v.    Shinn    (38    O.    S.    46), 

211,  335. 
LaGrange  v.  Ward   (11  O.  258),  64. 
Lake,  etc.  v.  Cleveland  ( 32  W.  L.  B. 

206),   572,  573. 
Lamb  v.   Boyd    (4   C.   C.   501),   572. 
Lamb  v.  Boyd  (4  C.  C.  499),  575. 
Lambert  v.  Sample    (25  0.  S.  336), 

28. 
Lamkin   v.    Knapp    (20   O.   S.    154), 

497. 
Lamont  v.  Home  Ins.  Co.   (10  W.  L. 

B.  413),  9,  18. 
Lang.  etc.  v.   Barnard    (6  W.  L.  B. 

635),  43,  326. 
Lanker  v.  Mattison   (20  C.  C.  229), 

627. 
Lanman   v.   Crooker    (97   Ind.    164), 

69. 
Larrimore    v.    Clemmer     (31    O.    S. 

499),  7,  55,  368. 


lx 


TABLE   OF 
[References  are 


Lariwe  v.  Beam   (10  0.  498),  480. 
Larvell  v.  Stevenson  (19  C.  C.  449), 

147. 
Larwell   v.   Burke    (19    C.   C.   449), 

48,  50. 
Lauer  v.  Cincinnati    (4  N.  P.  252), 

20. 
Lawler    v.    Wheets    (1    Handy   40), 

51. 
Lawrence  v.  Belger   (31  0.  S.  175), 

94. 
Lawyer    v.    Smith     (8    Mich.    412), 

618. 
Leaf  v.  Mariatt   (29  W.  L.  B.  221), 

9. 
Leary  v.   Fletcher    (1   Iredell,  259), 

245. 
Lee  v.  Ropers    (54  0.  S.  678),  365. 
Leebman    v.    Ashbacker     (36    0.    S. 

94),  14. 
Lemert  v.  Clark  (ICC.  571),  118. 
Lessee   v.   Barrows    (2    0.    S.   242), 

206. 
Lessee  v.  City   (18  0.  323),  49. 

149),  90. 
Lessee  v.  Dibble    (10  0.   434),   124. 
Lessee  v.  Emerick    (6  0.  391),  298. 
Lessee  of  Foster  v.  Executors   (8  0. 

107),  296. 
Lessee  v.  Hemphill   (3  O.  240),  597. 
Lessee  v.  Home   (5  O.  S.  318),  323. 
Lessee   v.    Longworth    (11    O.   236), 

123. 
Lessee  v.  Loring  (17  O.  S.  423),  64. 
Lessee  v.  McCoy   (8  O.  128)    122. 
Lessee   v.   Merritt    (5    0.    S.    308), 

320. 
Lessee   v.   Mooreland    (15    0.    445), 

64. 
Lessee  v.  Norton  (1  0.  278).  lis. 
Lessee  v.  Oosterout   (1  0.  32),  107. 
Lessee   v.   Reed    (5  0.  221),   100. 
Lessee  v.  Whitman    (2  0.   S.  270), 

51,  63. 
Lessee,    etc.    v.    Dugan    (8    0.    87), 

342. 
Lessee,  etc.  Loring   (7  O.  425),  141. 
Lessee,   etc.    v.    Reffire    (6   0.   255), 

342. 
Lessee   of    Darby    \     Carson    (9   0. 
Lessee  of   Merrit  v.  Home    (5  0.  S. 
318),  326. 


CASES. 

to  sections. j 

Lessee  of  White  v.  Sayre  (2  0.  110), 

298. 
Lester,  etc.  v.  Kelly  ( 67  N.  Y.  409 ) , 

616. 
Lewis  v.  Lewis   (15  0.  715),  41. 
Leyman  v.  Leyman   (19  C.  C.  054), 

312,   333. 
Lible  v.  Maxwell  (4  0.  S.  236),  364. 
Lime  v.  Bryer  (6  B.  C.  104),  616. 
Limson   v.   Limson    (114    111.    603), 

337. 
Lindsay  v.   Zanoni    (6   C.  C.   477), 

295. 
Linton  v.  Laycock    (33  0.  S.  129), 

302. 
Linton  v.  Laycock    (33   O.  S.   128), 

295,  302,  346. 
Little  v.  Eureka    (4  A.  L.  R.  229), 

263. 
Little,  etc.  v.  Collett   (6  0.  S.  183), 

504,   573. 
Littleton  v.  Marshall    (36  W.  L.  B. 

301),  29. 
Livingston  v.  Livingston    (2   J.  Ch. 

R.  537),  463. 
Livingston  v.  Newkirk  (3  Jobns.  Ch. 

316),  212. 
Lloyd  v.  Cover    (1  Duch.  47),  297. 
Locke  v.  Stearns   (1  Met.  562).  155. 
London   v.   Payne    (41    0.   S.   303), 

342. 
Long  v.  Long    (19  111.  383),  337. 
Long  v.   Long    (30   111.   App.   559), 

337. 
Long  v.  Long  (142  N.  Y.  545),  206. 
Long  v.  Mulford  (17  O.  S.  484),  72, 

342. 
Long  v.  Mulford   (17  0.  S.  485),  42 
Long  v.  Mulford  (17  0.  S.  503),  41. 
Longley    v.    Stump     (11    W.    L.    B. 

247),  215. 
Longworth    v.    Flagg    (10    0.    302), 

366. 
Longworth  v.   Wolfinger    (W.  216), 

587. 
Longworth  v.  Wolfington    (6  0.  9), 

594. 
Loomis  v    Building   (37  0.  S.  394), 

94. 
1. drain   v.   Lemning    (3   0.   D.   624), 

304. 
Loring  v.  Illesey   (1   Cal.  27),  58. 
Loring  v.  Melendy  (11  0.  356),  92. 


TABLE    OF    CASES. 
[References  are   to   sections.] 


lxi 


Loudenback  v.  Collins  (4  0.  S.  251), 

62. 
Lowe  v.  Maurer  (1  Cleve.  157),  312, 

326. 
Lowe  v.  Phillips  (21  0.  S.  657),  333. 
Lowmiller  v.  Fouser  (52  0.  S.  123), 

569. 
Ludlow   v.    Barr    (3    0.    388),    585, 

594. 
Ludlow  v.  Cooper   (4  0.  S.  1),  310, 

464. 
Ludlow  v.  Cooper   (4  0.  S.  9),  464. 
Ludlow  v.  Johnson   (3  0.  553 ) ,  206. 
Ludlow  v.  Kidd   (3  0.  541),  56. 
Ludlow  v.  McBride  (3  0.  240),  579. 
Lules   v.    Fleming    ( 1    Deb.   Eq.   E. 

185),  463. 
Lusby  v.  Jones    (31  W.  L.  B.  70), 

572,  574. 
Lynch  v.  Baxter   (4  Tex.  431),  297. 
Lynch  v.  Hickey  (13  111.  App.  139), 

206. 


Mc 

McAffee  v.  Phillips   (25  0.  S.  374), 

211. 
McAllister  v.  Davy   (5  N".  P.  274), 

156. 
McAllister    v.    Hartzell     (60    0.    S. 

83),  588. 
McAlpine    v.    Woodruff    (11    0.    S. 

129),  482. 
McArthur    v.    Franklin     (16    0.    S. 

194),  480. 
McArthur    v.    Franklin     ( 15    0.    S. 

485),  457,  468. 
McArthur    v.    Franklin     (16    0.    S. 

193),  454. 
McArthur  v.  Porter   (1  0.  99 ) ,  465. 
McArthur  v.  Gallagher    (8  0.  512), 

585. 
McBain  v.  McBain    (15  O.  S.  349). 

70. 
McBain  v.  McBain    (15  0.  S.  337), 

118,  303. 
McBride  v.  Murphy   (14  0.  S.  349), 

70. 
McBride    v.    Longworth    (14    0.    S. 

349),  71. 
McCormick  v.  Alexander   (2  0.  66), 

95. 


McCall   v.    Pixley    (48    0.   S.    379), 

206,  215. 
McClelland    v.    Bishop     (42     0.    S. 

113),  370. 
Medoskey   v.    Strickland    ( 7    Iowa, 

257),'  3. 
McComb    v.    Thompson     (42     O.    S. 

139),  92,  96. 
McConner  v.  Carey  ( 48  Pa.  St.  345 ) , 

297. 
McCormic    v.    Cummins     (59    Neb. 

330),  9. 
McCune   v.    Snyder    (8   O.   D.   316), 

375. 
McClure  v.  McClure  (2  Harris  137), 

303. 
McDonald    v.    Cincinnati     (4    X.    P. 

253),  304. 
McDowell    v.    Nuns    (15    W.    L.    B. 

359),  159. 
McFarlan    v.    Mills     (4    W.    L.    B. 

1064),   156. 
McGill   v.   Deming    (44    0.   S.   652), 

452. 
McGill   v.   Deming    (44   0.   S.   645), 

477,    496. 
McGillicuty  v.  Cook   (5  Blckf.  179), 

212. 
McGuines    v.    Rece     (48    la.    361), 

245. 
McGuire  v.   Ely    (W.  520).  70. 
McKean  v.  Ferguson  (51  0.  S.  207), 

497. 
MeKenzee  v.  Perrell   (15  O.  S.  162), 

573. 
McKibben  v.  Day    (98  X.  W.  845), 

9. 
McKinney    v.    McKinney    (8    0.    S. 

423)',  584. 
McLane  v.  Colburn    (2  X.  P.  N.  S. 

257),  159. 
McLane  v.  Placerville  (66  Cal.  606), 

288. 
McLaren  v.   Stone    (18   C.   C.  854), 

854. 
McMahon  v.  Davis    (19  C.  C.  245), 

70. 
McMahon  v.  Davis    (19  C.  C.  242), 

71. 
McMahon  v.  Gray  (5  L.  R.  A.  748), 

455. 
McMahon  v.  Gray   (150  Mass.  289), 

455. 


Ixii 


TABLE   OF   CASES. 
{References  are   to  sections.] 


McMaster  v.  Keller    ( 1   C.  C.  476), 

629. 
McMasters   v.   Smith    (5   W.   L.   M. 

25).    295. 
McMasteis   v.   Smith    (5   W.   L.   M. 

28).    295. 
McMillan  v.  Robbing  (5  0.  28),  584. 
McMillan  v.  Robins    (5  0.  28),  407, 

43(1. 
McNeely  v.  Laugan    (22  0.   S.  32), 

569,  5.  :. 
McRoberts   v.    Lockwood    (49    0.   S. 

374).   346. 
McVeigh    v.    Ritenour     (40     0.    S. 

107),  92,  584. 
McWhinney  &  Ryan  v.  Swisher   (58 

0.   S.  378),  257. 


M 


Mack  v.  Bonner  (3  0.  S.  366),  346. 
Mack    v.    Scotchman     (7    A.    M.    L. 

Rec.   662),   94. 
Mader  v.  Apple   (80  0.  S.  697),  616. 
Magee  v.  Beatty   (8  0.  396),  364. 
Magruder  v.  Esmay    (35  0.  S.  221), 

413. 
Magruder  v.  Esmay   (35  0.  S.  213), 

415,  421,  431. 
Mabam  v.  Coombs   (14  0.  428),  364. 
Maholm  v.  Marshall    (29  0.  S.  611), 

9,  19,  30,  367. 
Maholm    v.     Marshall     (29     0.      S. 

616),    9. 
Mahonings   Bank's   Appeal    (32    Pa. 

St.    160).   58. 
Main   v.    Streng    (13    0.    I).    X.    P. 

446).  342,  569. 
Maines  v.  Henkle  (3  W.  L.  M.  597), 

574. 
Maklcy  v.  Whitmore  (61  <>.  S.  587), 

410. 
Mallery  v.  Russel    (71    la.  63).  309. 
Manarr   v.    Parish    (26   0.   S.   636), 

252. 
Mandel   v.  McClave    I  16  <».  S.  414), 

453. 
Mandel  v.  McClave   (46  0.  S.  407), 

454.   455.   465. 
Mandel  v.  McClave   (46  0.  S.  107), 
324. 


Mane   v.    Rider    (51    Pa.    St.   377), 

297. 
Manley  v.  Hunt   (1  O.  257),  92. 
Mannix  v.  Elder   (1  C.  C.  61),  284. 
Mansfield  v.  Bartlett  (65  0.  S.  451), 

563. 
Mansfield  v.  Mclntyre    (10   0.  29), 

463. 
Mansfield   v.   Mclntire    (10   0.   27), 

496. 
Mansfield   v.   Post    (22   C.   C.   644), 

139. 
Mansfield   v.   Post    (22   C.   C.   732), 

159. 
Moore   v.    Eagles    (1    Murph.   302), 

298. 
Mare   v.    Robinson    (6    O.    S.    302), 

61. 
Marsh    v.    Dellinger    (127    N.    Car. 

360),   191. 
Marsh   v.   Marsh    (4   A.   L.   R.   25), 

40. 
Marsh  v.  Reed    (10  0.  347),  569. 
Marsh  v.  Reed    (10  O.   S.  47),  578. 
Martin  v.  Alter    (42  0.  S.  94),  92. 
Masier   v.   Harmon    ( 29   O.   S.   58 ) , 

611. 
Mason  v.  Alexander   (44  0.  S.  334), 

77. 
Mason   v.    Pierson    (69    Wis.    585), 

214. 
Massie  v.  Donaldson   (8  0.  377).  41. 
Massie  v.  Long    (2   0.  287),   434. 
Massie    v.    Matthews     (12    0.    352), 

41. 
Mathers  v.  Bull  (19  C.  C.  657),  412. 
Mathers   v.   Lewis    (18   C.   C.    134), 

412. 
Mathews    v.    Cincinnati     (3     C.    C. 

284),  94. 
Mathews  v.  Thompson    (3   0.   272), 

106. 
Maurer  v.    Parish    (26    0.    S.    366), 

257. 
Mawick  v.  Wolf    (3  W.  L.  B.   458), 

30.    145. 
Mawicke  v.  Wolf   (2  W.  L.  B.  87), 

143. 
Mayee    v.    Young     (40    Miss.    164), 

"  454. 
Mayor  or  Wick   (15  O.  S.  548),  170. 
Max  v.  Schotchman   (7  Am.  L.  Rec. 
665),  94. 


TABLE   OF    CASES. 
[References  are    to   sections.] 


lxiii 


Maxwell  v.  Holmes    ( 1   N.  P.  N.  S.    ]  Minnick  v.  Matchett  ( 10  Kan.  App. 

170),  9. 
Minning    v.    Ratdorff     (5    Pa.     St. 

503 ) ,  302. 
Minshall,  J.,   in   Railway  v.  Cronin 

(1  W.  L.  B.  315),  375. 
Missionary    Society    v.    Ely    (50   O. 

S.   405),  611." 
Mitchell  v.  Dunlap  ( 10  O.  117),  111. 
Mitchell  v.  Winslow   (2  Story  (530), 

455. 
Mohr,  etc.  v.  Insurance  Co.  ( 12  Fed. 

Rep.  474),  34. 
Mohr,  etc.  v.   Lomar,  etc.    ( 7  W.  L. 

B.  341),  37. 
Monahan  v.  Vandyke   (27  111.   154), 

206. 
Moneghan   v.    Moneghan    (25    O.   S. 

325).  100. 
Monroe  v.   Barclay    (17   O.   S.  302), 

615. 
Moon  v.  Lancaster    (W.  35),  455. 
Moor  v.  Ogden    (35  O.  S.  430),  99. 
Moore  v.  Armstrong  ( 10  O.  11 ).  588. 
Moore     v.     Beckwith      (14     O.     S. 

129),  215. 
Moore  v.  Burnett   (11  O.  334).  584. 
Moore  v.   Freeman    (50   O.   S.  592), 

339. 
Moore    v.    Mayor    (4    Seldon,    110), 

324. 
Moore    v.    Rettenhouse     ( 15    O.     S. 

310).  92. 
Moore   v.   Robinson    (6   O.   S.   302), 

55,  64. 
Moore  v.  Starks    ( 1   O.  S.  371).  41. 
Moore  v.  Starks   ( 1  O.  S.  36.)  i.  fin. 

63,  64. 
Moore's  Lessee  v.  Vance   (1   O.   10). 

463. 
Morelein,  etc.  v.  Westmeir    (4  ('.  ('. 

296),  409. 
Morgan  v.  Burnett   (18  O.  535).  41. 
Morgan  v.  Hays    (10  W.  L.  J.  83), 

156. 
Morgan  v.  Kenney    (38  O.   S.  613), 

94. 
Morgan  v.  Kenney    (38  O.  S.  610), 

263. 
Morgan  v.  Staler    (11   O.  389).  306, 

307. 
Morison  v.  Kinstra    (55   Miss.   71), 

245. 


13).  95 

Mead  v.  McGraw   (19  O.  S.  55),  77. 
Mears  v.  Mears    (15  O.  S.  90),  611, 

615,  622. 
Mechanics    v.    O'Connor    (29    O.    S. 

655) ,  65. 
Mechanics    v.    O'Connor     (20    0.    S. 

652),  120. 
Medical  College  v.  Ziegler   ( 17  0.  S. 

521).  463. 
Meeritz  v.  Insurance   (8  X.  P.  422), 

459. 
Meese  v.  Keefe   (10  O.  362),  628. 
Meir  v.   Bank    (55  O.   S.  447),   101. 
Menkins   v.   Menkins    (23   Mo.   Rep. 

252).  321. 
Mercer    v.    Cunningham     (53    O.    S. 

361).  276. 
Mercer    v.    Cunningham     (53    O.    S. 

353),  273. 
Mercer    v.    Jones     (3    Camp.    Rep. 

477),  321. 
Merrill  v.  Home    (5  O.  S.  318).  43. 
Merrif.   etc.,   v.    Borden    (2    Disney, 

503),  114. 
Meyers  v.  Barrow  ( 3  C.  C.  92 ) ,  626. 
Meyers  v.  Hewitt    (16   O.   449).   92. 
Middleton    v.    Westenney    (7    C.    C. 

393).  580,  585. 
Middleton    v.    Westenney     (7    C.    C. 

268),  586. 
Miesse  v.  McCoy   (17  O.  S.  225).  24. 
Miller  v.   Cincinnati    (5  C.  C.  583), 

569. 
Miller    v.    Erdhouse     (2    W.    L.    B. 

84),  63.  70. 
Miller  v.  Frazor  (42  N.  C.  192),  309. 
Miller  v.  Miller  (16  O.  S.  531),  463. 
Miller    v.    Peters     (25    O.    S.    270), 

324,  466. 
Miller  v.  Rouse   ( 7  N.  P.  300),  314. 
Miller    v.     Wilson     (15     <">.     1080). 

341.  461. 
Miller  v.  Woodson  (14  O.  51S),  454. 
Mills    v.    Life,    etc.     (4    W.    L.    B. 

935),  105. 
Mills  v.  Van  Vorhees  ( 20  X.  Y.  Rep. 

415) .  457. 
Miles  v.  Parks    (49  O.  S.  370).  118. 
Milson  v.  Rouk   (57  O.  S.  422),  90. 
Miners  v.  Morse  ( 15  0.  568 ) ,  92. 


lxiv 


TABLE   OF    CASEa*. 
[References  are  to  sections.] 


Morris  v.  Daniels    (35   O.  S.  406), 

67,  71. 
Morrison  v.   Balkans    (8    W.   L.   R. 

572),    310. 
Morton  v.  Gray   (1  W.  L.  M.  408), 

121. 
Morton  v.  Sterrit  (4  N.  L.  G.  132), 

15G. 
Mosterton   v.   Beasley    (3    0.    301), 

444. 
Moyes  v.  Nelson  ( 7  N.  P.  607 ) ,  626. 
Mudlow  v.  McBride  (3  O.  240),  585. 
Munday  v.  Vail   (43  N.  J.  L.  41S), 

59,  60. 
Mundy  v.  Mundy  (2  Ves.  Sen.  122), 

463. 
Murdock  v.  Lentz  (34  O.  S.  589), — 
Mnrna  v.  Murna  (23  O.  S.  602) ,  629. 
Murphy  v.  Murphy   (12  O.  S.  407), 

462,  463. 
Murphy  v.  Swadener   (33  O.  S.  86), 

7. 
Murray  v.  Murray  (5  A.  L.  R.  256), 

569. 
Murray  v.  Pandy  (66  Mo.  606),  245. 
Mussy  v.  Budd  (11  C.  C.  552),  462. 
Mussey  v.  Budd  (11  C.  C.  553),  454. 
Mussy  v.  Stunnel  (15  C.  C.  439),  47. 
Myers  v.  Aikens  (8  C.  C.  228),  401. 
Myers  v.  Smith  (29  O.  S.  120),  145. 
Myers  v.  Hewitt  (16  O.  449),  94. 
Myers  v.  Warner   (18  O.  519),  341. 


N 


Nail  v.  Furnace  (46  0.  S.  544),  563. 
Nat'l.   Bank   v.   Railway    (21    0.   S. 

221),  147. 
Nave  v.  Smith   (95  Mo.  596),  297. 
Needles   v.   Needles    (7   0.   S.   432), 

341. 
Neff  v.   Cincinnati    (32   0.   S.   215), 

313. 
Neff  v.  Cox-   (5  N.  P.  413).  94. 
New,  etc.  v.  Crocker   (7  C.  C.  327), 

614. 
Newall    v.    Sadler    (16    Mass.    122), 

342. 
Newberg   v.   Munshower    (37    0.   S. 

617).  55. 
Newman  v.  Cincinnati   (18  0.  323), 

61. 


Newcomb  v.  Receiver    (23  W.  L.  B. 

75),   134. 
Nicholl  v.  Railroad  (12  N.  Y.  121), 

455. 
Nichols  v.  Balser   (1  C.  C.  48),  314. 
Nimmons    v.    Westfall     (33    0.    S. 

226),   191. 
Ninmons  v.  Westfall  (33  O.  S.  213), 

194. 
Nixon,  etc.  v.  Nash,  etc.    ( 12  0.  S. 

652),  93. 
Northern  v.  Maumee   ( 2  N.  P.  260 ) , 

159. 
Northern,    etc.,    v.    Roosa     (13     0. 

335),  95. 
Norton  v.  Beaver   (5  0.  178),  99. 
Norwood  v.  Norwood    (4  Har.  &  J. 

112),  298. 
Norwood  v.  Ogden    (15  C.  C.  539), 

504. 
Nyce  v.  Obertz  (17  0.  77 ) ,  480. 


O'Donohue  v.   Corby    (22   Mo.   Rep. 

394),  321. 
Ohio    v.    Commissioners     (40    0.    S. 

331),  132. 
Ohio  v.  Waters   (65  0.  S.  157),  263. 
Ohio,  etc.  v.  Trust  Co.   (13  0.  220), 

116. 
Ohio,    etc.    v.    Goodin     (10     0.    S. 

566),  118. 
dinger    v.    Hoffman     (6    W.    L.    J. 

490),  407,  475. 
Oliver    v.    Jones     (3    N.    P.     130), 

46. 
Oliver  v.  Jones   (3  N.  P.  130),  462. 
Omwake  v.  Jackson    (5  N.  P.   119), 

371. 
Omwake  v.  Jackson  (15  C.  C.  615), 

56. 
O'Neal  v.  Blessing  (34  0.  S.  34),  39. 
Ordway  v.  Downard   (51  Pac.  Rep. 

1047),  369. 
Orlap    v.    Schuler    (4    C.    C.    N.    S. 

611).  159. 
Osburn  v.  Bartram   (15  C.  C.  224), 

77. 
Osborne  v.  Lidy   (51  O.  S.  96),  11, 

18,  19. 


TABLE    OF    CASES. 
[References  are   to   sections.] 


lxv 


Overholser    v.    Wright     (17    0.    S. 

157),  341. 
Owens  v.  Hall  ( 13  0.  S.  571),  11. 
Oyler  v.  Scanlon  (33  0.  S.  308),  195. 


Paine  v.  Mason   (7  0.  S.  198)     ;64. 
Paine  v.  Mooreland   (15  0.  436),  J3, 

142. 
Paine  v.  Mooreland   (15  O.  435),  61, 

64,   92. 
Paine   v.  Skinner    (8   0.   159),  206, 

569. 
Park  v.  Collett  (1  Clev.  L.  Rep.  92), 

94. 
Parker  v.  Miller    (9   0.    108),  92. 
Parker  v.  Van  Darn,  etc.    (23  C.  C. 


444] 


'.   33. 


Parmeter     v.     Burkley     (28     0.     S. 

32),  — 
Parsons  v.  Parsons    (52  0.  S.  470), 

341. 
Partridge  v.  Harrow  (27  la.  96),  69. 
Patterson  v.  Gulnare   (2  Disn.  505), 

159. 
Patterson  v.   Hickey    (32  Ga.   156), 

618. 
Patterson     v.     Patterson      (Dayton 

288),  307. 
Patterson    v.    Prother     (11    0.    35), 

594. 
Patterson  v.  Wilkins  (W.  501).  6. 
Pattison  v.  Jordan    (3   C.   C.  233), 

570. 
Patton   v.   Patton    (39    0.    S.   590), 

302. 
Patton  v.   Sheriff    (2   0.   395),   101. 
Pavne    v.    Becker    (87    N.    Y.    153), 

455. 
Penn  v.  Cox   (16  0.  32),  301. 
Penn   v.   Havward    (14    0.   S.    302), 

12,  53,  *78. 
Pennywit  v.  Foote    (27  O.   S.   600), 

60. 
Penrod  v.  Danner   (19  0.  218),  581, 

594. 
Pepple   v.    Pepple    (13    C.    C.    431), 

614,  615. 
Perkins  v.   Dibble    (1   0.   433).  434. 
Perry  v.  Richardson   (27  O.  S.  110). 

295,  301. 
Perry  v.   Sharp    (8   Fed.    15),   9. 


Petersine    v.    Thomas     (28    O.     S. 

597),   62. 
Pfantz    v.     Comford     (36     Pa.     St. 

420),  154. 
Pfeifer  v.  Cook    (11   W.  L.  B.  320), 

262. 
Phelps  v.   Butler    (2  O.  224  i .  92. 
Pliilipps   v.   Elwell    (14   O.   S.   240), 

27. 
Phillips  v.  Keels   (4  C.  C.  R.  316), 

462. 
Phillips  v.  Phillips    (14  0.  S.  314), 

463. 
Piatt  v.  ct.  Clair  (6  O.  227).  402. 
Piatt  v.  Hubbel   (5  O.  243),  297. 
Piatt  v.  Longworth    (27  O.  S.  160), 

125. 
Pilcher  v.  Graham    (18  C.  C.  5).  22. 
Pinnev  v.  Fellows   (15  Vt.  R.  525), 

4*63. 
Pittsburg     v.     Railwa"     (20    C.     C. 

561),  578. 
Pittsburg  v.    Lvnde    (55   O.    S.   23), 

65. 
Place  v.   Sweetzer    (16  0.  142).  93. 
Plumb  v.  Robinson    (13  O.  S.  298), 

444. 
Poag  v.  Shaw    (10  C.  C.  448),  569 
Poe  v.  Dixon    (60   0.   S.   124).  369. 
Pond  v.  Emily   (Daytci  284),  65. 
Pope   v.    Hibernia   Ins.    Co.    (24    0. 

S.  481),  143. 
Pope  v.  Meade   (99  N.  Y.  201),  455. 
Portage,    etc.,    v.    West     (6    O.    S. 

599),    17. 
Porter  v.  Burclay   (6  0.  S.  254),  56. 
Porterfield     v.     Butler      (47     Miss. 

156).  59. 
Post  v.  Stiger    (29  N.  J.  Eq.  554). 

214. 
Potter  v.   Wheeler    (13   Mass.   503), 

343. 
Powell   v.   Kochler    (52   O.   S.    103), 

628. 
Powers     v.     Armstrong     (36     O.     S. 

357).  582. 
Powers  v.  Railroad    (33  O.  S.  42!)). 

524. 
Pratt    v.    Bates     (101    Mass.    315), 

39,  197. 
Pratt  v.  Longworth    (27  O.  S.  169). 

111. 
Pratt  v.  Sherman    ( 1   Cleve.  L.  Rec. 

14).    146. 
Prentiss    Case    (7    O.    129    [Pt.   2]). 

308.  321. 
Presbyterian    v.     Pickett     ( W.    57), 

587. 


lxvi 


TABLK    OF 
[References   are 


Preston    v.    Brame    (35    0.    S.    18), 

588. 
Preston  v.  Compton  (30  O.  S.  299), 

321. 
Pugh    v.    Calloway    (10   O.    S.   494), 

°92. 
Putnam    V.    Putnam     (18    0.    347), 

341. 
Putnam  v.  Loeb   (2   C.  C.   110),  48, 

51. 


Railroad    v.    Ball     (5    0.    S.    568), 

538,   539. 
Railroad  v.   Belle  Center    (48  O.  S. 

273).    63,    509. 
Railroad   v.   Bohm    (29   O.  S.   633), 

509. 
Railropd   v.   Harris    (4   0.   S.   583), 

Railroad    v.    Longworth     (30    O.    S. 

108),  539. 
Railroad    v.     Marshall     (11     O.    S. 

497),  524. 
Railroad  v.  Orme   (1  C.  C.  511),  33. 
Railroad  v.  Peoples    (31  O.  S.  537), 

160. 
Railroad  v.  Sullivant  (5  O.  S.  276), 

524. 
Railroad   v.    Sundry  Persons    (7   W. 

L.  J.  265).  503. 
Railroad    v.   Transportation    (32    O. 

S.   135),  34. 
Railroad    v.    Zinn    (18    O.    S.    417), 

513. 
Railroad    Co.    v.    Railroad    Co.    (38 

().    S.    614).   309. 
Railroad,    etc.,    v     Marey    (47    O.   S. 

iJlO),  14. 
Ry.     v.     Commissioners     (30     O.     S. 

120),  569. 
Railway     v.     Cummins     (53     0.     S. 

,683),  564. 
Railway    v.    Elyria    (14   C.   C.   52), 

562. 
Railway  Co.  v.  Jones   (4  W.  L.  A. 

5),   175. 
Railway  v.  Jones  (3  < >.  Dec  Reprint 

219),  476. 
Railway  v.  Jewett    (37   O.  S.  649), 

15. 
Railway   v.   Marey    (47   0.  S.  207), 

15. 
Railway  v.   McLean    (1   C.  C.   112), 

15 
Railway  v.   McPeck    (16  C.  C.  87), 

15.' 


CASES. 

to   sections.] 

Railway   v.   Wolf    (13   C.   C.    374), 

399. 
Rainey    v.    Jefferson,   etc.    (8    C.    C. 

674),    18. 
Rammelsburg    v.    Mitchell     (29    0. 

S.  22),  125,  310. 
Ramelsberg   v.    Mitchell    (29    0.    S. 

53),  464. 
Randall   v.   Turner    (17    0.   S.   262), 

41. 
Randoll  v.  Pryor    (4  0.  425),  78. 
Rands  v.   Kendell    (15  O.  671),  461. 
Rankin   v.   Hannan    (37   O.   S.   117), 

99. 
Rapp  v.  Becker  (4  C.  C.  N.  S.  139), 

615. 
Rapp  v.   Latham    (2  B.  &   A.   795), 

155. 
Raudelbaugh    v.    Shelley     (6    0.    S. 

307),  617,  618. 
Raugh,    etc.    v.    Achswitch     (36    W. 

L.  B.  302),  96. 
Raymond    v.    Railway     (57     0.    S. 

282),  591. 
Raymond  v.  Toledo   (57  0.  S.  271), 

572. 
Ream  v'.  Walls    (61   0.  S.   131),  39, 

45,  64,  191,  197. 
Reddell  v.   Bryan    (5   0.  51),  93. 
Reddle  v.  Roll   (24  0.  S.  572),  111. 
Reed  v.  H:    'an    '"»  O.  S.  553),  431. 
Reed  v.  Radigan  (42  O.  S.  292),  118. 
Reel  v.  Reel   (1  Hawks  248),  618. 
Reeves   v.   Hunter    (62   0.   S.   619), 

341. 
Reeves   v.    Skenett    (13   O.   S.  574), 

346. 
Reformed,  etc.   v.  Nelson    (35   O.  S. 

638).  627. 
Reich  v.  Pike   (8  N.  P.  234),  145. 
Rempe   v.    Ravens    (68   O.    S.    113), 

142. 
Renneck  v.  Wallace  (8  0.  539),  431. 
Renner  v.   Bird    (2   W.  L.    B.  77), 

324. 
Renner   v.    Bird    (2   W.   L.   B.   76), 

466,   477. 
Rewell    v.    Warren     (4    C.    C.    N.    S. 

545),  615. 
Reynolds  v.   Bank    (112  U.  S.  405), 

572. 
Reynolds    v.    Lupus    (7    0.    [Pt.    H 

17).  442. 
Reynolds  v.  Stansbury   (20  <>.  344), 

61. 
Rhea    v.    Dick    (34  0.  S,  425),  577. 
Rhea    v.    Dirk    (34    O.  S.   410),  569. 
Rhodea    v.    Cum.     (35    0.    S.    395), 
413,  418,  426. 


TABLE    OF    CASES. 
[References   are    to    sections.] 


lxvii 


Rnodes  v.  Gunn    (33  0.  S.  387),  54, 

582. 
Khoads  v.  Moore  (43  0.  S.  31  ).  267. 
Ricard   v.  Williams    (7   Wheat.  59), 

211. 
Rice    v.    Lumlev     ( 10    0.    S.    59?  ) , 

46,  459,  496. 
Richards  v.  Skefr    (S  O.  S.  589),  63. 
Richter     v.     lhornton      (  l(i     C.     C. 

637),  24. 
Riddle   v.   Bryan    (5   0.   48),   65. 
Ridgeway     v.     Bank      (11     Humph. 

523).    09. 
Ridgeway    v.    Masting     (23    O.    S. 

294),  461. 
Ridley  v.  Holliday   (  106  Term.  607), 

L91. 
Ries  v.  Wolf  (18  C.  C.  352),  588. 
Ritefi    v.    Hawkhurst     (114    X.    Y. 

512),  337. 
Rivers  v.  Fripp    (4  Rich.  Eq.  270), 

302. 
Roads   v.   Symmes    (1    O.   281),   94, 

122. 
Rohb  v.   Irwin    ( 15   O.  689 ) .  206. 
Rohh   v.    Lessee    (15    O.   689),   41. 
Roberts    v.     Doun     (20    W.     L.     B. 

397),  65. 
Roberts  v.  Page    (61   O.  S.  96),    44, 

255. 
Roberts     v.     Price      (4     W.     L.     M. 

581),  70. 
Roberta   v.   Remey    (50   O.   S.  249). 

304. 
Roberts   v.   Roberts    (61    O.    S.   96), 

40,  342. 
Robey    V.     Rainsberger     (27     0.     S. 

077).   62. 
Robins  v.   Clemens    (41    O.   S.   285), 

24. 
Robinson    Bank   v.   Miller    (153    111. 

244),    464. 
Robinson   v.   Branph    (10  Rec.   485). 

346. 
Robinson  v.  Fife  (3  O.  S.  551).  588. 
Robinson     v.    Williams     (62    0.    S. 

25),  276. 
Roby     v.     Ramsberger     (27     0.     S. 

674),  77. 
Rockwell    v.    Beaney     (5    X.    P.    X. 

S.  580).  626. 
Roeg  v.  Schultz    (42  O.  8.   165),  92. 
Rogers  v.  Dill    (6  Hill.  415),  245. 
Rogers  v.   Ellis    (  1    Disn.    1  ).    159. 
Rogers  v.   mcker  ( 7  O.  S.  417),  316, 

342. 
Romic's  Admr.  v.  Romig    (2  Rawl's 

Rep.  241),  32*1. 


Roome  v.  Phillips    (24  X.  Y.   403), 

3(12. 
Rosenthal    v.    Mayhugh     (33    0.    S. 

109),  4.->.-).  462. 
Rothgeb   v.    Monk    (35    0.    S.   503), 

569. 
Rowekamp  v.  Meyer   (10  Rec.  568), 

335. 
Ruffner  v.  Evans  (2  C.  C.  435).  462. 
Ruffner    v.    McLean     (16    0.    041), 

452.   453. 
Rulman  v.  Hubse   (32  Kan.  595).  9. 
Runyon  v.  Price    ( 15  O.  S.   1 ) ,  618. 
Rush  v.  Rush    (29  O.  S.  441  i.  346. 
Russell    v.    Russell    (6    C.    C.    294), 

027. 
Russell    v.    Russel     (16    C.    C.    46), 

483.  477. 
Rvan  v.  Root  (56  O.  S.  302),  101. 
Ryan   v.   O'Connor    (41    0.   S.  308), 

572. 


S 


St.  John  v.  St.  John    (11  Yes.  529), 

403. 
St,  Louis  v.  Coal  Co.   (Ill  111.  32), 

60. 
St.  Paul  v.  Mintzer   (65  Minn.  124), 

191. 
Saddler    v.    Hoffhines     <  |  Ky.    1890] 

12    S.    W.    715).    337. 
Safarik  v.  Oreenwald   (1   C.  C.  X.  S. 

219),    12. 
Sage  v.   Sleutze    (23  0.  S.    1),  92. 
Samert  v.  (lark    |  1   C.  C.  569),  114. 
Sampkin  v.  Chisom   (10  O.  S.  451), 

77. 
Sanders  v.  Robertson  (57  Ala.  405). 

309. 
Sandusky  v.  Wilbur    (7  0.  S.  486), 

503.* 
Sane  v.  Baughman    i  17  0.  S.  642), 

92. 
Saylor    v.    Simpson    I  4."i    0.    S.    1411, 

270. 
Schaffer  v.  Waldo  (7  0.  S.  310),  24. 
Schatzman   v.   Stump    (7   W.   L.    B. 

334),  159. 
Seller   v.    Ingerman    (110    Ind.    428), 

212. 
Schiler    v.    Miller    (45    0.    S.    525), 

230. 
Schiml  v.  Schiml   (4  C.  C.  38).  476. 


lxviii 


TABLE    OF 
[References  are 


Schneider   v.    Terrin    (41    W.   L.    B. 

54),    114. 
Schoff  v.  Wasteuney  ( 13  C.  C.  340), 

398. 
Schiller   v.   Miller    (45   0.    S.   325), 

92,  273. 
Schulte    v.    Oberd    (4    N.    P.    207), 

5U9. 
Schuyler  v.  Marsh    (37  Barb.  350), 

314. 
Schwartz  v.   Leist    (13    0.   S.   420), 

365. 
Scallan    v.    Pedet    (2    C.    S.    C.    R. 

15G),  580. 
Scott  v.  Douglass   (7  0.  pt.  1,  228), 

92. 
Scott  v.  Dunn   (26  0.  S.  63),  284. 
Scott  v.  Waite  ( 12  0.  D.  X.  P.  324) , 

305,   306. 
Sconce  v.  Whitney  (12  111.  150),  41. 
Scribner   v.   Lockwood    (9    O.    187), 

65. 
Scribner,    etc.,    v.    Lockwood    (9    O. 

184),   71,   92. 
Scroll  v.  Klueher    (15  O.  153),  594. 
Schroyer    v.    Richmond     (16    0.    S. 

455),   63. 
Sears  v.  Sears   (77  0.  S.  104),  616, 

623,   624. 
Seeger's  Estate   (7  N.  P.  207),  627. 
Seibert  v.   Switzer    (35   0.   S.   661), 

143. 
Sella rs  v.  Corwine    (5  O.  339),  594. 
Sellen    v.   Chresfald    (1    Hand,   87), 

155. 
Sellers    v.    Corwin     (5    O.    408),    94. 
Seldman  v.  Lindeman    (4  W.  L.  B. 

911),  215. 
Sergeant    v.    Steinberger     (2    O.    S. 

:inii),  300. 
Sessions  v.  Smodka   (  1  15  U.  S.  29), 

294. 
Severns  v.  Gerke   (3  Law  353),  245. 
Seward  v.  Seward    (  1    Duvall,  126), 

nit;. 
Seymt  ur   v.    King    i  11    0.  342),  92. 
Shaler  v.  Maqui    (2  <  >.  2:55),  394. 
Sharp  \.   Ross   (7  C.  ('.  56),  ion. 
Shaumkin    v.    Streel     i  16   0.   S.    1), 

59. 
Shawnee   v.    Bank    ( 1    C.   C.   N.   S. 
569),  157,  159. 


CASES. 

to    sections.] 

Shawnee   v.   Miller    (1    C.   C.   N.   S. 

569),   159. 
Sheldon  v.   Newton    (3   0.   S.  494), 

64,  111,  206. 
Shelly  v.   Jefferson    (9   O.   S.   606), 

20. 
Shepard   v.    Shepard    (7    J.    Ch.    R. 

57),  463. 
Shepherd  v.  Ross  Co.   (7  O.  271   [pt. 

1]),  78. 
Shilto   v.    Pullian    (2   Disney,   588), 

306,  309. 
Sherman  v.  Sherman    (2  C.  C.  N.  S. 

256),  39,   197. 
Sherman  v.  Sherman   ( 2  C.  C.  N.  S. 

454),  194. 
Shonds  v.  Allison   (5  N.  P.  54),  94. 
Slirayer    v.     Richmond     ( 16    O.    S. 

466),  64. 
Siebert   v.    Switzer    (35   O.  S.  661), 

142. 
Sidener  v.   Howers    (37   0.   S.  532), 

55,  224. 
Sidner  v.  Alexander    (31  0.  S.  378), 

118,  188,  321. 
Siebman  v.  Ashbacker  (36  0.  S.  94), 

92. 
Sisters,    etc.,    v.    Kelly     (67    N.    Y. 

409),  616. 
Sites  v.  Widener  (35  O.  S.  555),  73. 
Sittler  v.   City    (106  111.   353),  563. 
Skerrett   v.   Presbyterian    (41    0.   S. 

606),  577. 
Skinner    v.    Brown     (17    0.    S.    33), 

421,   426. 
Sleet    v.    Williams     (21    0.    S.    82), 

159. 
Smead   v.    Lacey     (1    Disney,    139), 

93. 
Smiley    v.    Gambill     (2    Head,    164), 

618. 
Smiley  v.   Dewey   (17  0.  156),  56. 
Smiley  v.  Wright    (2  <).  507),  461, 

462. 
Smith    v.    Anderson    CM    0.   S.    144), 

212. 
Smith   v.   Bank    (26  0.   S.   Ill),  77. 
Smith    v.    Barber    (7   0.    118),  312, 

313J   315. 
Smith    v.     Boston     (7    Cush.    254), 

563. 
Smith  v.   Brown    (06  Tex.  543;    1  S. 
W.  573),  337. 


TABLM    OK 
[References  are 


CASES. 

to   sections.] 


Lxix 


Smith  v.  Carver  (36  W.  L.  B.  189), 

.so:;. 
Smith  v.  Dalton  (1  C.  S.  ('.  R.  150), 

154. 
Smith    v.    Dalian     (1    C.    S.    C.    It. 

151).  154. 
Smith    v.    Findlay     (2    Handy,    70), 

580. 
Smith  v.  Handy    (10  O.  192),  402. 
Smith   v.   Hayward    (5   N.  P.  501), 

21.-). 
Smith   v.  Hogg    (52   O.  S.  530),   04. 
Smith    v.    Hoover     (39    0.    S.    349), 

31,  47. 
Smith    v.    Hoover     (39    O.    S.    249), 

154. 
Smith   v.  Hunt    (13  0.  200).  5*4. 
Smith    v.    Johnson    (57    0.    S.   480), 

18. 
Smith    v.    Montag     (32    W.    L.    B. 

153),  336. 
Smith  v.  Montag  ( 32  W.  L.  B.  183 ) , 

336. 
Smith    v.    Moore's    Heirs     (5    Dana, 

417),  342. 
Smith  v.  Pabst    ( 1  Iddings  T.  R.  D. 

108),  159. 
Smith  v.  Pratt    (13  O.  540),  312. 
Smith  v.  Pratt    (13  O.  551),  342. 
Smith  v.  Rothschild    (4  C.  C.  545), 

324. 
Smith  v.  Smith    (13  O.  S.  532). 
Smith  v.  Smith    (57  O.  S.  27),  462, 

463. 
Smith   v.   Whistler    (10    C.   C.   130), 

475. 
Smith  v.  Whittlesay   (19  C.  C.  415), 

50. 
Smith  v.  Whittlesy   (19  C.  C.  412), 

140. 
Smithers  v.  Rainey   ( 14  O.  S.  287  i , 

77. 
Smithfield   v.   Wheeling,  etc.    (11   C. 

C.  412),  94. 
Snell    v.    Cincinnati,   etc.    (00   O.   S. 

256),  20. 
Snevely  v.  Lowe   (  18  O.  368),  200. 
Snyder  v.  Betts    (2  ('.  C.  485).  204. 
Society  v    Drake   (  10  C.  C.  59),  465. 
Society   v.    Haines    (47    O.    S.    424  1, 

369. 
Solinsky   v.   Bank    (85   Tenn.   308), 

214. 


South  Kenton,  etc.,  The  v.  Espy  (  17 

C.  C.  524),  347. 
Southward    v.    Jamison     (00    0.    S. 

311),  59,   60. 
Southward    v.    Jamison    (00    G.    S. 

290),  04. 
Spadler  v.  Lawler    (17  O.  371),  304. 
Spahr    v.    Parker     (8    Bevan,    45ty, 

309. 
Spahrhawk    v.    Yoerkes    ( 142    U.    S. 

1),  294. 
Spangler  v.   Dukes    (39   O.   S.   642), 

463,  509. 
Sparks  v.  Beyer   (5  Kan.  App.  721  i, 

9. 
Sparrow     v.     Kinsman      I  1      Const. 

24.3).    400. 
Speller  v.  Nye    (10   O.   10),   100. 
Spence  v.    Insurance   Co.    (40   O.    S. 

417),  368. 
Sperry  v.  Pond    (5  O.  388).  584. 
Spier'v.  Carll    (33  O.  S.  230).  00. 
Spinning   v.    Blackburn     ( 13    O.    S. 

131),  377. 
Spoars  v.  Caen    (44  O.  S.  497),  59, 

00,   04,   324. 
Sprague    v.    Law     (17    C.    C.    735), 

462,  405. 
Springmeier  v.  Blackwell    (3   \\ .   1.. 

B.   1160),  409. 
Stableton  v.  Ellison   (21  O.  S.  527), 

341,   340. 
Stacy    v.     Cunningham     (09     0.     S. 

181),  011,  021. 
Stacy's  Will    (4  N.  P.  133).  011. 
Stapleton  v.  Ellison   (21  O.  S.  527), 

302. 
Stapleton  v.    Reynolds    (5  A.   L.  R. 

242),  24. 
Stanberry  v.  Carlisle  (35  0.  S.  214), 

420. 
Stanberry  v.  Nelson    (W.  766),  431. 
Stanberry  v.  Sillon    (13  0.  S.  571), 

427. 
Standard,  etc.  v.  Sowden    (55  0.  S. 

332).  376. 
Stanton  v.  Ballard   I  133  Mass.  464), 

60. 
Stanton    v.    Enquirer   Co.    (7    X.    P. 

589).    14. 
Stanton  v.  Kendrick    ( 3.'.  W.  E.  19), 

369. 
Starr  v.  Wright   (20  O.  S.  99),  586. 


lxx 


TABLE    OF    CASES. 
[References   are   to   sections.] 


State    v.    Commissioners     (39    0.    S.        Stoddard  v.  Meyers   (8  0.  203),  50 


(il), 
State  v.  Conover    (9  X.  J.  L.  338), 

206. 
State  v.  McCarty  (52  0.  S.  363),  20. 
State  v.  Newton.  (26  0.  S.  200).  13. 
State  v.  Ry.   (  1  X.  5202),  588. 
State   v.   Salem,  etc!    (5   C.   C.  5s  | , 

52S. 
State    v.    Worthington     (23    Minn. 

528),  450. 
State,    etc..    v.    Rabbitts     (40    0.    S. 

178  1.  21. 
State,  etc..  v.  Shaw    I  43  (».  S.  324), 

20. 
State,    etc.,    v.    Winget     (37    O.    S. 

153),  21. 
State,  etc.,  v.  Wolfe   (  11  C.  C.  501  ), 

21. 
State,   ex  rel.   v.    Hobson    ( 7   X.   1'. 

187),    144. 
State,   ex  rel.   v.   Tousey    (49    O.    S. 

656),  443. 
Staynor   v.    Bovver    (42    0.    S.    314), 

'341. 
Steel   v.  Pogue    (15  C.  C.   149),  421, 

432,  444. 
Steele    v.    Board   of    Education    (31 

W.  L.   B.  84),  462. 
Stempel    v.    Thomas    (89    111.    147), 

333. 
Sternberger    v.    Ragland    (57    O.    S. 

157).  07. 
Sternberger   v.    Ragland    (57    0.    S. 

148).   71. 
Stevans   v.   Shannon  el   <tl.    (6   C.  C. 

142).  564. 
Stevens  v.   Enders    (1  Green's.  N.  -I. 


Stoltz  v.    Boltz    (5   W.   L.    B.   410), 

454. 
Stone  v.  Banking  Co.   (8  C.  C.  636), 

158. 
Stone  v.  Cardell    (3  W.  S.  J.  70),  7. 
Stone  v.  Doster    (7   C.  C.  8).  346. 
Stone   v.    Marsh    (6    B.    &    C.    551), 

155. 
Stone  v.  Stone    (42  0.  S.  53),  207. 
Stone  v.  Whittaker    (61  0.  S.   104), 

143. 
Stoughton     v.     Forest      (4     Blackf. 

370),  455. 
Stousell    v.    Roberts     (13    0.    148), 

364. 
Stout  v.  Lye   (203  U.  S.  66),  56. 
Street  v.  Francis   (3  0.  277),  444. 
St.  Railway  v.   St.   Railway    (50  0. 

S.  603).  520. 
Striker  v.  Mott  (2  Paige,  380),  307. 
Strobe  v.  Downer  (13  Wis.  10),  60. 
Strobe  v.  Downer  (13  Wis.  11),  59. 
Strong  v,  Clem  (12  Ind.  37),  455. 
Stuart  v.  Day  (3  W.  L.  M.  214),  28. 
Sturgeon  v.   Korte    (34   0.   S.   525), 

154. 
Sturges  v.  Longworth   ( 1  0.  S.  544), 

47. 
Stall    v.    Powell     (70    Neb.    152).    9. 
Stump  v.  Carver   (22  W.  L.  B.  365), 

615. 
Stump   v.    Stump    (26    0.    S.    169), 

341. 
Sturtevant  v.  Tuttle  (22  0.  S.  Ill), 

157.  150. 
Styles  v.    Murphy    (4   <  >.  92),  00. 
Sy'mmcs  v.  White    <4  W.  L.  .1.  528), 
462. 


II.   271  ).   3(17. 

Stewarl  v.  Ate,,   (5  O.  S.  257),  484.       Summer    v.    Sampson    (8    0.    364), 
StewaH   v.  Hopkins   (30  0.  S.  502), 

364. 
Stewarl    v.   I  tail  way    (53  <  >.  S.   151), 

57.  94. 
Stichtenoth   v.    Rife    (6  C.  c.  540), 

377. 
Stichtenoth    v.   Toph    (23   W.   L.    15. 

126),  341. 
Stiles     \.    Wi.lcncr     (35    ().    S.    555), 

69,   L23. 
Still  v.  Palmer   (41    Miss.  89  1.  5!) 


Sumner    v.    Hampson     (S    ().    328), 

Kit. 
SutclilVe  v.  Darman   (  IS  ().  181  ),  93. 
Sutleff   v.   Shenago   Bank    (  1    W.   L. 

M.    214  1.    150. 
Swan   v.    Railway    (A    <  >.    D.   71  I.    15. 

18. 
Swart/,  v.   State    (13  ( '.  ( '.  62).  459. 
Swasev    v.    Cones     (Warden's    Daily 

Bulletin),   1 10. 


Stilley  v.    Folger    (it   0.650).    163.    I  Swasey  V.  Blackmin  (8  0.  S.  5),  63. 

Stockwell   v.  Coleman    (  Id  'I.  S.  35).     | 


TABLE!    OF    CASES. 
T References   are    to    sections.] 


Ixxi 


Swavne  v.  Xeiswonger    (20  0.  550), 

*427. 
Sweeney    v.    Shade    (22   ().   S.   333 ) , 

462. 
Swihart   v.   Shoun    (24   O.   S.   432), 

341. 
Swinhart  v.  Swiuhart   (  7  C.  C.  338 ) , 

340. 


Tabler.v.   Wiseman    (2    0.   S.   208), 

300,    303,    305,    30G,    307,    316, 

460. 
Tabler   v.   Wiseman    (2   0.   S.  209), 

466. 
Talhnan  v.  Baltimore   (45  Fed.  Rep. 

156).  30,  33. 
Taylor  v.  Boyd   (3  O.  337),  70,  78. 
Taylor    v.    Foster    (22    0.    S.    255), 

594. 
Taylor  v.  Fowler  (18  O.  567),  465. 
Taylor  v.  McDonald  (4  0.  149),  154. 
Taylor  v.  McDonald  (4  0.  155),  141. 
Taylor  v.  Moaher  (29  Md.  443).  302. 
Taylor    v.    Taylor    (5    N.    P.    N.    S. 

323),  026. 
Taylor    v.    Thorn     (29    0.    S.    569), 

211,  230. 
Thayer    v.    Thayer     (7    Peck.    209), 

342. 


Thompson  v.  Montrasa  (2  N.  P.  N. 

S.   368),  9. 
Thompson   v.  Ogden    (3   C.  C.  N.  S. 

51).    154. 
Thompson     v.    Thompson     (4    ().    S. 

333),  368. 
Thompson    v.    Thompson    ( 18    O.   S. 

73),  341. 
Thomson  v.  Love  (42  0.  S.  7<>).  :H6. 
Thurston    v.    Mevke    (32    Md.   571), 

343. 
Todd  v.  Beatty    ( \V.  460),  4.">.~>. 
Toledo  Loan  Co.  v.  Larking  (  1  C.  C. 

N.  S.  473),  306. 
Toledo   v.    Preston    (50    0.    S.   301), 

64. 
Toledo,  etc..  v.  Larking    (  1   C.  C.  R. 

X.  S.  473),  307. 
Tolheiss    v.    James     (25    W.    L.    B. 

277 ) ,  385. 
Tollerton     v.     Williard     (30    O.     S. 

579),  56. 
Towner  v.  Wells    (8  O.  136).  95. 
Tousley    v.    Tousley    (5    O.    S.    78), 

364. 
Townsend  v.   Hazard    (9  R.   1.  442), 

314. 
Tracey  v.  Sackett   ( 1  O.  S.  54).  615. 
Traver  v.  Baker   (38  W.  L.  B.  273), 

9. 
Trembly    v.    Trembly     (4    0.    L.    R. 

545),   619. 


Thatcher  v.  Dickson    (3  C.  C.  144),    |   Treon  v.   Emerich    (6   0.  391).   431, 


Thomas   v.    Brown    (10   O.   S.    247), 

402. 
Thomas  v.  Huesman   (10  O.  S.  152), 

380. 
Thomas  v.  Myrick   (24  Minn.  4).  62. 
Thomas    v.    White     (2    0.    S.    540), 

569. 
Thompson  v.  Adams    (205   111.  552), 

191. 
Thompson  v.  Chesman   (48  Pac.  Rep. 

477),  309. 
Thompson    v.    Gotham    (9    0.    170), 

342,  426. 
Thompson   v.  Green    (4   0.   S.  217), 

584.  588. 
Thompson   v.   Hoop    (6    O.    S.    4S1). 

462. 
Thompson  v.  Massie  (41  O.  S.  307),    I   Tuttle  v.  Wilson   (  10  0.  27).  476. 


434. 
Trout  v.  Marvin   (62  0.  S.  132).  94. 
Truman  v.  Luc  ( 14  O.  S.  114).  615. 
Trumble    v.    Longworth     (13    <  >.    S. 

438),  60. 
Trumble    v.    Longworth     (13    O.    S. 

431  ).   49,  0L   63. 
Trustee   v.   Thoman    (51    0.   S.  285), 

442. 
Tucker  v.  Shade    I  25  O.  S.  355),  94. 
Tucker  v.  Shade  (25  0.  S.  358),  95, 

99. 
Tullis  v.  Pierano   (9  C.  C.  647).  474. 
Turner  v.  Crehill    (1   O.  372).  56. 
Turney    v.    Yeoman     (14     O.    208), 

426.  434. 
Turney  v.  Yeoman   (14  O.  207).  462. 
Tusca  v.  O'Brien  (68  N.  Y.  446).  62. 


9. 


,  Tuttle  v.  Wilson    (10  O.  24).  4C. 


ixxii 


TABLE    OF 

[References   are 


Tyler   v.    Columbus    (6    C.    C.   224), 

507. 
Tynan    v.    Baschal    (27    Tex.    28(5), 

618. 

U 

Underbill   v.   Jackson    (1    Barb.   Ch. 

73),  314. 
Linger  v.  Inciter   (32  0.  S.  210),  454, 

457,   4li.">. 
Union  Central,  etc.  v.  Pryer   (30  0. 

S.  534).  14. 
Union  v.  Smith  ( 4  C.  C.  N.  S.  237 ) , 

627. 
Union,  etc..  v.  Packard  (1  C.  C.  78), 

141.  150. 
Union,  etc..  v.  Union,  etc.    (6  0.   S. 

254).  50. 
United  States  v.  Telephone  Co.    (50 

O.   F.   D.   559).  37. 
Upper   Mississippi,  etc.,   v.    Whitta- 

ker   (16  Wis.  233),  34. 


Vallette  v.  Kentucky   ( 2  Handy,  1 ) , 

47,   142. 
Van    Arsdale    v.    Drake     (2     Barb. 

599),  309. 
Vandemark  v.  Mattingly    (62  0.  S. 

25),  270. 
Vandement  v.  Trisler   (4  N.  P.  37), 

2!  I. 
Vance   v.   Manny    (4  Cal.   47).    iOQ. 
Vanthomity    v.    Peters     (20    0.    S. 

471  ).  36  t. 
Van   Zant  v.  Daviea    (6  0.   S.   52), 

341. 
Vattier    v.    Jobnston    (1    W.    L.    •'• 

393  i.    182. 
Vattier  v.   Lylte    (6  <>.  478),  05. 
Venable     v.     Bcnuehamp     (3    Dana, 

321),  324. 
Ventress    v.    Smith    (  10    Pet.    101), 

206. 
Vrooroon  s.   Powers   (47  O.  S.  191), 

W 

Wabash,    etc.,    The    v.    The   Toledo, 
etc.  (7  N.  I'.  198),  569,  576. 


CASES. 

to   sections.] 

Wachenbeimer    v.    Standart    ( 19    C. 

C.  693),  330. 
VVacbtel  v.  Campbell   (7  N.  P.  507), 

263. 
Wade  v.  Pettibone   (11  O.  57),  125. 
Waller  v.  Goble  (53  Barb.  517),  143. 
Wagner  v.  Railway    (38  O.   S.  32), 

541. 
Wagner    v.    Ziegler    (44    O.    S.    69), 

623. 
Waite  v.  Feist,  etc.    (6  N.  P.  434), 

585. 
Waldron  v.   Woodcock    (15    O.    13), 

594. 
Walk  v.  Bank    (15  O.  288),  28. 
Walker  v.  Hall   (15  O.  S.  355),  324. 
Walker  v.  Morris  ( 14  Ga.  323) ,  288. 
Walker  v.  Walker    (14   O.   S.    158), 

623. 
Wallace   v.   Dayton    (Dayton,   416), 

584. 
Walpole  v.  Ink    (9  O.   142),  70. 
Walsh  v.   Freeman    (21    O.   S.  402), 

321 
Walz  v.  Hertz    (24  W.  L.   B.   110), 

434. 
Wanzer  v.  Widow  (2  W.  L.  M.  426), 

466. 
Ward    v.    Barrows     (2    O.    S.    241), 

42,  211,  431. 
Ward  v.   Bridge   Co.    (6   O.    S.    15), 

539. 
Ward  v.  Casey    (39  O.  S.  361),  364. 
Ward    v.    Davis     (3    Sanford,    502), 

309. 
Ward    v.    Howard     (12    0.    S.    158), 

142,  100. 
Ward  v.  Mcintosh    (12  O.  S.  237), 

460. 
Ward   v.   Mcintosh    (  12   0.  S.   231), 

5S7. 
War,]  v.  Rv.  Co.   (3  X.  P.  275),  399. 
Ward  v.  Ward    (20  C.  C.   136),  159, 

Oil. 
Warner  v.  Callender  (20  O.  S.  190), 

33. 
Warther  v.  Ruehwein  (8  X.  P.  494), 

39. 
Wasson   v.   Beffner    (  13  0.  S.  573), 

620. 
Waterman  v.  Watterman   (57  0.  S. 
ti'.i).  296,  298. 


TABLE    OF 

I  I  Leferences   a  re 


(ASKS. 

to   sections.] 


lxxiii 


Wat  kins  v.  Quarrels   I  23  Ark.  170). 

302. 
Watson  v.  Paine   (2.3  ( >.  S.  :S4(D.  30. 
Watterson    v.    Try     (.3    ('.    ('.    354), 

573. 
Waymire  v.  Staly  i  3  0.  366),,  101. 
WCaver  v.  Gregg    (6  0.  S.  .347).  324. 

454.  461. 
Weaver  v.  Gregg  (6  O.  s.  525),  466. 
Weber  v.   King    (7   W.   L.   B.    148), 

101. 
Weekly  v.  Hall   (13  O.   L67),  4.3.3. 
Weeks'    v.    McBeth     (14    Ala.    474). 

618. 
Wehrle   v.   Wehrle    (30   0.   S.   368), 

71. 
Weiss  v.  Geddes    (Dayton,  31),  330. 
West  v.  Meyer  (46  O.  S.  66),  329. 
Weitcamp  v.  Loelir    (53  X.  Y.  Sup. 

Ct.  83),  154. 
Welch    v.    Buckins    (9    0.    S.    331), 

460,  462. 
Welch  v.  Childs   (17  O.  S.  319),  62. 
Welch   v.    Thompson    (39   Ga.   559), 

297. 
Welsh   v.   Freeman    (21   O.   S.  402), 

321. 
Welsh    v.    Perkins    (8    O.   52),    111, 

215. 
Welsh  v.  Wilson   (9  C.  C.  X.  S.  till), 

614. 
Werner  v.  Glass   |  It;  W.  L.  B.  354), 

305.  306. 
West  v.  James    (51   0.   S.  230),  99. 
West  v.  Klotz    (37  O.  S.  420).  376. 
West  v.  Knoppenberger   i4  ('.  ('.  X. 

S.  305).  614. 
Westerman  v.  Westerman   i  2.3  0.  S. 

500).  92,  461. 
Westfall  v.  Dungan   (14  0.  S.  276), 

65. 
Weyer  v.  Sager    (21  C.  C.  44S).  454. 
Weyer  v.  Sager  (21  C.  C.  715).  4.3.3. 
Wheeler  v.  Cobb  (75  X.  C.  21  ).  154. 
Wherlin    v.    Mack.-     (  15    W.    L.    B. 

125).  143. 
Wherle    v.    Wherle    (30    0.    S.    65), 

230. 
White   v.   Brocaw    (14    0.    S.    330). 

304. 
White   v.    Denman    (16   O.  59),   364. 
White  v.  Doerner  ( 1  0.  S.  110),  364. 


White  v.    I'li.'se    (2  (  .   S.  C.    K.  30), 

30. 
White    v.    Moore     (23    S.    C.    456), 

337. 
White  v.  Say  re    I  2  <  t.   Ill),  581. 
W  nite    v.    Stanley     (29    < ».    S.    423  .. 

1.3!  I. 
White    v.    Stanley     (29    < ».    S.    443  I, 

159. 
White  v.  Woodward    (44  0.  S.  347), 

399. 
Whitehead    v.    Post     (3    W.    L.    M. 

L95),  30,  50,  .31.   107. 
Whitehead    v.     Posl      (3    W.     L.    M. 

19.3  1.   Ki7. 
Whitman  v.  Sheets  (20  C.  C.  L),  22. 
Whitney  v.  Emory   (3  Mich.  84),  58. 
Whitney    v.    Roth     (4.3    W.     L.    B.), 

615. 
Whitney     v.     Sherborn     i  12     Allen, 

111).    134. 
Whitney  v.  Webb    (10  0.  513),  588. 
Whittaker  v.  Stunner  (7  Pick.  555), 

27. 
Wilder  v.  Wilder   (  1  ( '.  C.  X.  S.  8) , 

346. 
Wiley   v.  Lewis    (4   N.   P.   212  i.  58, 

83. 
Wilfred  v.  Heimhoffer    (2   C.  C.  X. 

S.  369),  324. 
Wilford   v.    Eeimhoffer    (2   C.   C.  X. 

S.  360).  4(12.  4(16. 
Wilkins  v.  Buse  (9  0.  154),  413. 
Wilkens  v.  Hughes    (9  <  >.    154),  414. 
Wilson  v.  Houghton    (50  Mo.   1  (,  60. 
Wilson  v.  Bull    (10  P.  261),  342. 
Wilson   v.    Cincinnati,  etc.    (7   X.   P. 

511).  4. 
Wilson  v.   Fleming   (13  0.  73),  300. 
Wilson   v.  Hall    (6  C.   C.  .37m.  21.3. 
Wilson  v.  Hurst  (1  Pet.  C.  (.441), 

27. 
Wilson    v.   Kellcy    (21    S.    C.    535), 

337. 
Wilson  v.  Northern,  etc.    (16  W.   I.. 

B.  (it.  33. 
Wilson  v.  Scott    i  20  O.  S.  637),  114. 
Wilson    v.    Swiegert     (31    W.   L.    B. 

353  1 .  276. 
Will   >  i  .lames  Conway    (124   X.  V. 

4.3.3  i.  616. 
Will    of    .lames    0*Neil     (91    X.    Y. 

516),  616. 


lxxiv 


TABLE    OF 
[References   are 


Williams  v.  Burnett   (W.  53),  588. 
Williams  College  v.  Millett   ( 12  Mo. 

398 ) ,  343. 
Williams   v.   Englebright    1 75   0.   S. 

383).  584. 
Williams   v.   Englebrecht    (37    0.   S. 

383),  366. 
Williams    v.    Hamilton     ( 1     Handy. 

96),  7. 
Williams  v.  Mears   (2  Disney.  614), 

341. 
Williams    v.    Muller    ( 1    W.    L.    M. 

409),  263. 
Williams    v.    Pope     (Wright,    400), 

207. 
Williams  v.  Spriggs   (60  O.  S.  585), 

212. 
Williams  v.  Welton    (28  0.  S.  451). 

54. 
Williams,  Adm'r,  V.  Welton's  Adm'r 

(28  0.  S.  450),  47. 
Williams  v.  Welton    (28  0.  S.  451). 

18,  24,  25. 
Williams  v.  Williams   ( 8  0.  S.  52), 

215. 
Williams  v.  Williams    (3  W.   I.  M. 

152).  463. 
Williams'    Case    (3    Bland    Ch.    [M. 

D.]    ISO).  245. 
Williamson    v.    Nicklin     (34    0.    S. 

L23),  24. 
Williard    v.    Williard    (56    Pa.    St. 

119),   298. 
Williard    v.    Williard     (56    Pa.    St. 

571),   343. 
Wills  v.  Price    (9  Mass.  508),  305. 
Wills  v.  Price    (!)   Mass.   509),   303. 
Winchester  v.  Pierson    (3  W.  L.  J. 

131),  154.   159. 
Winder    v.    Sterling     (7    0.    pt.    2, 

190),   H3. 
Winderisch    v.    Brewing  Co.    (17    ('. 

C.  465),  611. 
Winemiller   v.    Laughlin    (51    <  >.    S. 
421),   40.   60,  04,  421.  500.  575. 
Winkler    v.   Winkler    (  1    Iddings   T. 

R.  I).    L24),  402. 
Wintering  v.  Conigan    (36  W.  L.  B. 

86),   157. 
Wintermute  v.   Montgomery    (11    0. 

S.   442),   588. 
Wintermute   v.    Montgomery    ill   0. 
S.  444).  582. 


CASES. 

to   sections.  J 

Winthrop   v.   Grimes    (W.  30),  585. 
Winthrop    v.    Grimes     (     2    0.    30), 

507. 
Winters    v.    Bank     (33    0.    S;    250), 

370. 
Wise  v.  Martin    (7  N.  P.  660),   157. 
Woodbridge   v.    Banning    (14    O.    S. 

328),  324,   584. 
Woodcock  v.  Baltimore,  etc.    ( 40  W. 

L.  B.   121),  33. 
Woodhull    V.    hong    street     (3    Har- 
rison   [N.  J.]    405),  207. 
Woodman    v.    Richardson     (  1    C.    C. 

19).  380. 
Woodward   v.   Dowse    (    C.  B.  X.  S. 

722),   471. 
Woodward-Holmes      v.      Nudd      (58 

Minn.  236),  464. 
Woodworthy  v.  Paige   (5  0.  S.  71), 

461. 
Wolverton     v.     Paddock      (3     C.    C. 

488),  230. 
Wood  v.   Butler   (23  0.  S.  520),  41, 

215. 
Wood  v.   Clute    (  1    Sand.   Chy.   Rep. 

202),  307. 
Wood  v.  Phillips   (2  C.  C.  138) ,  460. 
Wood  v.  Phillips  (2  C.  C.  130),  460. 
Wood  v.  Stanberry   (21  O.  S.  142), 

46.  368. 
Wood    v.    Warden     (20    0.    R.   518), 

463. 
Woods  v.  Prudell    (W.  507).  585. 
Woods   v.   Monroe    (17    Mich.    238), 

212. 
Worthy    v.    Johnson     (8    Ga.    236), 

206. 
Wright     v.     Edwards     Mo    Oregon, 

298),   206. 
Wright    \.    Franklin    (59    <  >.   S.   02), 

92. 
Wriglrl    v.    Merchant    (5    W.    L.   M. 

195). 
Wright  v.  Nickers   (81  Pa.  St.  122), 

343. 
Wyer  \.  Zane   (3  O.  306),  64. 


Y. 

Young    \.    Shellenberger    (53    0.   S. 
291),  80. 


Merwine's  Practice  and 

Procedure  in  Real 

Actions 


CHAPTER  I. 


PROCEDURE  BY  WHICH  A  COURT  ACQUIRES  POWER 

TO   TRANSFER  REAL  ESTATE  FROM  ONE 

PERSON  TO  ANOTHER. 


SECTION. 

1.  Preliminary  statement. 

2.  What   the  petition   should  con- 

tain. 

3.  Requirement   as    to    caption    of 

the  petition. 

4.  The  manner  in  which  the  action 

to  sell  real  estate  is  begun. 

5.  The  necessity  of  service  of  sum- 

mons or  entry  of  an  appear- 
ance in  the  action. 

6.  Requirement  as  to  precipe. 

7.  The    summons;    what    it   must 

contain,  and  by  whom  served. 

8.  When   the  summons   may  issue 

to  another  county. 

9.  Where     the     action     must    be 

brought. 

10.  Local  and  transitory  actions. 

11.  When      the      action      may      be 

brought  where  a  part  of  the 
property  is  situated. 

12.  Where    the    action    for    specific 

performance  of  a  contract  of 
a  sale  of  real  estate  must  be 
brought. 

13.  When     the     action     should     be 

brought  in  the  county  where 
the  cause   of   action   arose. 


SECTION. 

14.  Where  actions  other  than  those 

mentioned  in  Gen'l  Code, 
§11268  to  §11272  (R.  S. 
§5019  to  §5023),  must  be 
brought. 

15.  Venue  as  to  railroads  and  stage 

companies. 
1G.     Venue  as  to  turnpike  company. 

17.  Venue  prescribed  by  charter  of 

corporation. 

18.  Where  actions  against  non-resi- 

dents   may    be   brought. 
10.     General    rule    as    to    where    all 
other       actions       must       be 
brought. 

20.  How   change  of   venue   seen  red. 

21.  Change  of  venue  in  suit  by  or 

against  a  corporation. 

22.  Summons  may  not  be  served  on 

an  attorney  while  in  another 
county  on  professional  busi- 
ness only. 

23.  Tn  what  cases  persons  may  not 

be  summoned. 

24.  At  what  time  summons  is   re- 

turnable. 

25.  Issuance  of  alias  writs. 


§1 


MERWINE    ON    REAL    ACTIONS. 


SECTION. 

20.     By  whom    service   of    summons 
may  be  made. 

27.  What  parties  are  bound  by  the 
>  return. 

28.  The  manner  in  which  summons 

is  served. 

29.  Service  of   partners  in   attach- 

ment— Replevin. 

30.  What   is  equivalent   to    service 

of  summons. 

31.  How   service    rf   summons  may 

be  set  aside. 

32.  How  service  of  the  writ  is  made 

on  a  c  irporation. 

33.  What     the     return     of     service 

must  show. 

34.  What    is    meant    by    managing 

agent. 

35.  Service  of  summons  upon  joint 

stock  company. 

36.  How  insurance  company  served. 

37.  When   the  service   may  be   had 

upon   the    managing  agent. 

38.  Service    of    summons    upon     a 

minor. 

39.  Conduct  of  the  defense  for  and 

on  behalf  cf  an   infant. 

40.  The  nature   of  the   duties  of  a 

guardian  ad  litem. 

41.  The    defense    of    an    infant    by 

guardian  ad  litem   should  be 
a  real  defense. 

42.  Rights    of   infants    reserved   in 

judgment,  how. 


44. 


45 


4-d 


SECTION. 

43.  Power  of  guardian  to  act  for 
ward  hi  partition  proceedings. 

Guardian  cd  litem  in  sale  of 
real  estate  by  guardian. 

Guardian  ad  litem — Sale  of  real 
estate  by  an  administrator  to 
]  ay   debts. 

Service  of  summons  by  publi- 
cation. 

When  and  in  what  actions  ser- 
vice by  publication  may  be 
made. 

Service  of  publication  in  at- 
tachment. 

A  finding  of  notice  by  publi- 
cation not  subject  to  collat- 
eral attack. 

Affidavit  required  before  pub- 
lication is  made. 

How  the  publication  must  be 
made. 

When  the  service  by  publica- 
tion is  complete. 

When  service  of  copy  of  peti- 
tion may  be  made  out  of  the 
State. 

How  publication  made  against 
an  unknown  heir. 

Manner  of  service  where  two 
or  more  defendants  are  joint- 
ly   liable. 

Lis  pendens. 

Lis  pendens  as  to  suits  in  other 
counties. 


47 


48. 


49. 


50 


51. 


52. 


53. 


54. 


oo 


5G 
57 


Sec.  1.     Preliminary  statement. 

As  the  purpose  of  this  work  is  to  set  forth  the  law  and 
procedure  in  Ohio  by  which  title  to  real  estate  is  transferred, 
by  order  of  the  court,  or  judicial  sale,  from  one  person  to 
another,  only  so  much  of  the  law  of  pleading  and  practice 
as  pertains  to  the  giving  or  transferring  of  title  in  such  ac- 
tions or  procedure  will  be  set  forth  in  this  book.  For  the 
rules  of  law  of  code  pleading  applicable  to  such  actions  or 
procedure,  reference  must  be  had  to  appropriate  text  books 
on  the  subject.1 

The   forms   of    pleading   in    all   civil   actions   in   the    courts 


l  Kinkead's   Code  Pleading;     Kin-       Practice,  Parties  and  Forms;  Whit- 
kead's    Practice;     Bates'     Pleading,       taker's  Annotated  Code. 


POWER    TO    TRANSFER    REAL    ESTATE. 


§§2-4 


of   record   in    Ohio,    and    the    rules    by    which   their    sufficiency 
are  determined,   are  prescribed  by  statute.2 

Sec.  2.     What  the  petition  should  contain. 

In  all  actions  wherein  real  estate  is  sold  under  a  judg- 
ment, decree,  or  order  of  the  court,  the  petition  or  applica- 
tion in  the  case  should  set  forth  the  cause  of  action  in 
ordinary  and  concise  language,  and  a  demand  for  the  relief 
for  which  the  plaintiff,  or  applicant,  supposes  himself  to  be 
entitled.3 

Sec.  3.     Requirement  as  to  caption  of  the  petition. 

Each  petition  or  application  by  which  an  appeal  is  made 
to  a  court  for  a  sale  or  transfer  of  real  estate,  should  contain 
the  name  of  the  court  and  the  county  in  which  the  action 
is  brought,  and  the  names  of  the  parties,  followed  by  the 
name  of  the  pleading.4 

In  every  civil  action  the  party  complaining  must  be  known 
as  the  plaintiff,  and  the  adverse  party  as  the  defendant; 
and  the  title  of  a  case  is  not  permitted  to  be  changed  in  any 
of   its  stages,   except   when    the   defendant   prosecutes   error.5 

Sec.  4.     The  manner  in  which  the  action  to  sell  real  estate 
is  begun. 

In  a  civil  action  the  petition  or  application  must  be  com- 
menced by  filing,  in  the  office  of  the  clerk  of  the  proper 
court,  a  petition,  causing  a  summons  to  be  issued  thereon. 
In  various  chapters  of  this  book,  under  appropriate?   subjects, 


zGen'l  Code,  §11302  (R.  S. 
§  5054 ) . 

3Gen'l  Code,  §  11305  (R.  8.  § 
5057  )  ;  2  Bates'  Pleading,  Practice, 
Parties  and  Forms,  157;  Phillips' 
Code  Pleading,  §8  177-192,  322;  1 
Kinkead's  Code  Pleading,  §  50;  Whit- 
taker's  Annotated  Civil  Code,  164; 
see  §  50  herein  as  to  the  effect  of  a 
judgment  outside  of  the  issues  in 
the  case. 

*Gen'l  Code,  §  11304  (R.  S. 
§  5056)  ;  1  Bates'  Pleading,  Practice, 
Parties  and  Forms,  157;  Phillips' 
Code   Pleading,    §  169;    1    Kinkead's 


Code  Pleading,  §50;  Whittaker's 
Annotated   Civil    Code,    164. 

sQen'l  Code,  §11239,  (R.  S. 
§4972);  Whittaker's  Annotated 
Civil  Code,  24. 

"It  has  been  said  that  as  the 
Code  does  not  specify  in  what  part 
of  the  petition  the  title  shall  be 
found,  allegations  (if  who  the  parties 
are  in  the  caption  satisfies  the  re- 
quirement that  they  be  named."  1 
Bates'  Pleading,  Practice.  Parties 
and  Forms,  157;  Hill  v.  Thatcher, 
3  How.  Pr.  407;  King  v.  Bell,  13 
Neb.  409;  McClosky  v.  Strickland, 
7   la.   257. 


§§  5-7  MERW1NE    ON    REAL    ACTIONS.  4 

will   be   found   a  discussion   of  what   the  petition   or  applica- 
tion should  contain. 

Sec.  5.     The  necessity  of  service  of  summons  or  entry  of  an 
appearance  in  the  action. 

The  subject  of  the  issuing  and  service  of  summons,  or  the 
notification  required  by  law  upon  a  defendant,  or  a  party- 
having-  an  interest  in,  or  title  to.  real  estate  sought  to  be 
sold,  or  transferred  by  the  court,  is  one  demanding  the  most 
careful  attention  of  counsel  conducting  such  proceeding,  or 
examining  the  title  to  real  estate  so  sold  or  transferred  by 
the  court.  In  the  chapter  following  this  one,  in  this  book, 
will  be  found  a  discussion  of  this  subject,  and  we  must  be 
content  here  with  the  observation,  that  the  claim,  or  interest, 
of  any  one  in  any  real  estate  is  never  cut  off  or  barred  in 
any  way,  by  order  of  the  court,  unless  such  party  has  been 
brought  into  the  proceeding  by  some  one  of  the  different 
methods  provided  by  law  for  that  purpose.  In  other  words, 
the  court  must  first  acquire  power  to  hear  and  determine  the 
rights  of  all  of  the  parties  to  the  action.  This  power  is  ac- 
quired by  bringing  the  action  in  the  proper  court  and  by 
service  of  summons  upon  each  of  the  defendants  in  the  action, 
or  by  the  entry  of  appearance  in  the  case  by  any  of  the  other 
methods  permitted  by  law.6 
Sec.  6.     Requirement  as  to  precipe. 

The  statute  provides  that  in  order  to  begin  an  action  the 
plaintiff  must  file,  with  the  clerk  of  the  court,  a  precipe  stat- 
ing therein  the  names  of  the  parties,  and  demanding  that  a 
summons   issue.7 

All  writs  and  orders  for  provisional  remedies,  and  process 
of  every  kind,  must  be  issued  by  the  clerks  of  the  several 
courts;  but  before  they  are  issued  a  precipe  must  be  filed 
with  the  clerk  demanding  the  same.8 

Sec.  7.     The  summons — What  it  must  contain,  and  by  whom 
served. 

The  summons  must  be  issued  and  signed  by  the  clerk,  and 
lie   under  the   seal    of  the  court    from   which   it   is   issued;   its 

e  3ee     *  ~>0    as    to    what    the    is-       5033)  ;  see  Xo.  15  for  form  for  pre- 

>ur~    musl    contain.      See    8  60    for       ctpe  for  summons. 

discussion    of    question    of    jurisdic-  *<;,.„"]    Code,  §2877  (  R.  S.  8  4059). 

tion  of   parties.  The   clerk    lias   no    discretion;    ho 

-TGen'l    Code,    §11280     ( R.    S.    §       must   issue   the   writ.     Patterson  v. 

Wilkins,  W.  501. 


POWER   TO    TRANSFER    REAL    ESTATE. 


§7 


style  must  be,   "The  State   of  Ohio, 


County, ' ' 


and  it  must  be  dated  the  day  it  is  issued;  it  must  be  directed 
to  the  sheriff  of  the  county,  who  is  required  therein  to  notify 
the  defendant,  or  defendants,  that  they  have  been  sued,  and 
must  answer  at  a  time  therein,  or  the  petition  will  be  taken 
as  true,  and  judgment  rendered  accordingly.  When  the  ac- 
tion is  for  the  recovery  of  money  only,  there  must  be  endorsed 
on  the  writ  the  amount  to  be  stated  in  the  precipe,  for  which, 
with  interest,  judgment  will  be  taken,  if  the  defendant  fail 
to  answer;  and  if  the  defendant  fail  to  appear,  judgment 
cannot  be  taken  for  a  larger  amount,  and  the  «costs.9 

In  equity  cases  no  indorsement  is  required  on  the  summons. 
It  was  so  held  in  an  action  where  the  petition  asked  for  a 
personal  judgment  and  a  decree  of  foreclosure,  and  no  answer 
was  filed,  and  the  real  estate  was  sold  under  a  default  order 
of  sale,  no  personal  judgment  having  been  taken  in  the 
action.10 

The  sheriff  is  required  to  indorse  upon  every  writ  or  order 
the  day  and  hour  it  was  received  by  him.  In  all  actions 
where  the  sheriff  is  a  party,  or  is  interested,  process  must  be 
directed  to  the  coroner ;  and  if  both  the  sheriff  and  eoron  \r 
are  interested  in  the  case,  the  process  must  be  directed  to, 
and  executed  by,  a  person  appointed  by  the  court.11 


sGen'l  Code,  §  11281  (R.  S. 
§5034).  See  No.  15  for  form  for 
summons,  and  No.  17  for  form  for 
sheriff's   return   <if   same. 

io  Conn  v.  Rhodes.  20  0.  S.  044: 
Larimer  v.  Clemmer,  31  O.  S.  499. 
In  case  of  a  default  money  judg- 
ment, the  judgment  cannot,  in  any 
event,  be  for  more  than  the  amount 
named  in  the  summons.  Gen'l  Code 
§  11281  (R.  S.  §  5034)  :  Williams  v. 
Hamilton.  I  Handy,  96.  The  amount 
should  be  indorsed  on  the  summons 
whether  the  action  sounds  in  tort  or 
in  contract.  Hamilton  v.  Miller,  31 
0.   S.  87. 

Default  in  an  action  for  money 
only,  cannot  be  taken  unless  the 
amount  is  indorsed  on  the  sum- 
mons.     Finck    v.    Evers,    25    O.    S. 


82.  As  to  requirement  of  a  sum- 
mons on  cross-petition,  see  Thatcher 
v.  Dickson.  3  C.  C.  144.  As  to  the 
requirement  of  a  summons,  see  Ki- 
ous  v.  Kious,  2  W.  L.  M.  418.  In- 
dorsement applicable  both  to  sum- 
mons and  ad  respondendum.  Stone 
v.  Cardell,  3  W.  L.  J.,  79;  Herf  v. 
Shulze.  10  0.  203.  As  to  neces- 
sity for  indorsement  on  copy  served, 
see  Goodrich  v.  1  laner.  8  \Y.  L.  B. 
11.  It  is  error  to  render  judgment 
in  default  when  the  amount  is  not 
indorsed,  hut  such  judgment  is  val- 
id until  reversed  or  set  aside.  Gil- 
lett  v.  Miller,  12  C.  C.  2Q9. 

n  Gen'l  Code,  §2836  (R.  S. 
§  4966),  and  Gen'l  Code,  §  11219  (R. 
S.  §  4977 )  ;  Murphy  v.  Swadener,  33 
O.  S.  86. 


§§8,9  MERWINE    ON    REAL    ACTIONS.  6 

Sec.  8.     When  the  summons  may  issue  to  another  county. 

When  the  action  is  rightly  brought  in  any  county,  accord- 
ing to  the  provisions  of  the  statutes  regulating  where  all  ac- 
tions must  be  brought,  a  summons  may  be  issued  to  any 
other  county,  against  one  or  more  of  the  defendants,  at  the 
plaintiff's  request;  but  no  maker  or  acceptor,  or,  if  the  bill 
is  not  accepted,  no  drawer  of  an  instrument,  for  the  pay- 
ment of  money  only,  can  be  held  liable  in  an  action  thereon, 
except  on  a  warrant  of  attorney,  in  any  county  other  than  the 
one  in  which  he,  or  one  of  the  joint  makers,  acceptors,  or 
drawers,  reside  or  are  summoned.12 

Sec.  9.      Where  the  action  must  be  brought. 

In  order  to  know  whether  a  summons  may  be  issued  to 
another  county  for  a  defendant,  or  defendants,  it  is  necessary 
for  us  to  know  where  the  action  should  be  brought.  The 
venue  of  all  actions  must  be  properly  laid,  before  we  may 
know  whether  a  defendant  living  in  another  county  in  the 
State  may  be  brought  into  the  case  by  a  summons.13 

Actions  for  the   following  causes  must   be  brought  in  the 
county  in  which  the  subject  of  the  action  is  situated,  except 
as  provided  in  the  next  two  sections:  Gen'l  Code,  §§  11269,  11:270 
(R.  S.  §§5020,  5021). 
interest   therein. 

1.  For  the  recovery    of   real   property,   or   of  an   estate   or 

2.  For  the   partition  of  real  property. 

3.  For  the   sale   of  real  property   under   a   mortgage,   lieu 
or  other  incumbrance  or  charge.14 

12  Gen'l     Code,     §11282      (R.     S.  fendant  resides,  or  is  found,  or  any 

§5035).  agent  resides  or  is  found,  or  where 

18  Lamonl    v.    Home   Ins.    Co.,    10  service  may  be  obtained  without  re- 

W.   I..   B.  413.  spect  to  the  amount  in  controversy, 

"Gen'l     Code,     §11268      (R.     S.  and  to  recover  two-fold  the  damage 

§501!)i.  by  him  sustained,  and  the  costs  of 

Under  the  trust  statute  it  is  pro-  suit, 

vided  that,  in  addition  to  the  crimi-  Whenever   it    shall    appear   to   the 

nal   and   civil   penalties   provided   in  court,  before  which  any  proceedings 

this  chapter  relating  to  trusts,  any  under  this  act  may  be  pending,  that 

person   who   shall    In'    injured   in   his  the  ends  of  justice  require  that  oth- 

business    or    property    by    any   other  er    parlies    shall    he    brought    before 

person  or  corporation  or  association  the    court,    the    court    may    cause 

or    partnership,    by    reason    of    any-  thorn   to  he  made   parties  defendant 

thing    forbidden    or    declared    to    le  and  summoned,  whether  they  reside 

unlawful  by  this  act.  may  sue  there  in   the  county  where  such  action  i-* 

for  in  any  court   having  jurisdiction  pending,  or  not.     Gen'l  Code,  §0397, 

thereof  in  the  county  where  the  de-  (R.  S.  §  4427-11. 


POWER   TO    TRANSFER    REAL    ESTATE. 


§9 


An  action  was  begun  in  this  county,  praying  for  an  injunc- 
tion to  restrain  a  defendant  in  another  county  from  closing 
up  a  right  of  way  between  their  farms.  The  defendant  in 
another  county  entered  his  appearance  and  waived  the  serv- 
ice of  summons  by -a  paper,  not  on  the  back  of  the  summons 
or  on  the  petition.  The  defendant  filed  an  answer  thereafter, 
for  the  sole  purpose  of  objecting  to  the  jurisdiction  oi  the 
court,  in  Which  he  alleged  that  he  was  a  non-resident  of  this 
county,  and  had  not  been  served  with  summons,  and  prayed 
that  the  action  be  dismissed  for  want  of  jurisdiction.  To 
this  a  reply  was  filed,  alleging  that  the  defendant  had  en- 
tered his  voluntary  appearance  in  writing.  Upon  a  demurrer 
to  this  reply,  the  court  held  the  reply  a  sufficient  defense. 
The  Supreme  Court  sustained  this  decision.13 

In  another  case  in  an  action  in  the  nature  of  a  creditor's 
bill,  brought  in  this  county,  it  was  held  that  the  interest  of 
a  defendant  in  real  estate  located  in  another  county,  cannot 
be  reached  by  a  court  in  such  action,  and  the  defendant 
cannot  be  required  to  answer  as  to  his  interest  in  such  land, 
and  have  his  interest  therein  determined  by  the  court  in 
such  action.16 

In  proceedings  for  the  foreclosure  of  mortgages,  either  un- 
der the  old  chancery  practice  or  under  the  provisions  of  the 
Code,  the  service  of  summons  could  be  made  upon  the  de- 
fendant in  a  county  in  this  State,  other  than  that  in  which 
the  lands  were  situated  and  action  brought,  and  in  actions 
asking  for  foreclosure  and  also  a  personal  judgment  under 
Gen'l  Code,  §11306  (R.  S.  §5058),  the  venue  being  fixed  by 
Gen'l  Code,  §  11268  CR.  S.  §  5019),  summons  may  be  properly 
served  on  a  defendant  in  anv  countv  of  the  State.17 


isTraver  v.  Baker,  38  W.  L.  B. 
273. 

isDwelle  v.  Hinde,  18  C. -C.  618; 
see  also  Butler  v.  Birkey,  13  0.  S. 
514. 

17  Maholm  v.  Marshall,  29  O.  S. 
616. 

Chapmen,  a  resident  of  Stark 
County,  was  served  with  a  summons 
in  that  county  in  an  action  brought 
by  the  Bolton  Steel  -Company  in 
Fairfield  County,  Ohio,  on  a  lien 
for  material  furnished,  under  §  31S4, 


as  amended,  84  0.  L.  6  (Gen'l 
Code,  §8308),  for  the  erection 
of  a  derrick  to  be  used  in 
boring  for  gas  on  the  premises  of 
the  Amanda  Gas  Company.  The 
petition  contained  two  causes  of 
action;  first,  upon  an  account  for 
material  furnished,  and  second,  for 
the  foreclosure  of  a  lien.  A  judg- 
ment was  rendered  upon  the  first 
cause  of  action  only,  and  an  execu- 
tion issued  thereon,  and  levied  on 
the     real     estate     of     Chapman     in 


§9 


MERWINE   ON    REAL   ACTIONS. 


8 


In  a  well  considered  nisi  prius  ease  it  was  held  that  an 
action  whose  objects  are:  (1)  To  have  a  trust  fastened  upon 
a  tract  of  land,  (2)  to  have  an  absolute  deed,  on  its  face, 
declared  a  mortgage,  (3)  to  enforce  the  right  of  the  plain- 
tiff to  redeem  the  mortgage,  and  (4)  to  have  the  land  there- 
upon conveyed  to  him,  is  not  an  action  to  recover  real  estate 
or  any  estate  or  interest  therein ;  and  it  may,  and  should, 
be  brought  in  the  county  where  the  defendant  resides,  and 
not  in  another  county  where  the  land  is  situated.18 

An  execution  creditor's  suit  to  set  aside  a  fraudulent  con- 
veyance of  land  by  the  debtor  is  maintainable  in  the  county 
where  the  land  lies,  though  the  judgment  was  obtained  and 
all  parties  reside  in   another  county.19 

An  action  begun  to  enforce  a  stockholder's  liability,  under 
the  statute  is  not  rightly  brought  within  the  county,  within 
the  meaning  of  the  statutes,20  when  none  of  the  defendants 
reside,  or  could  be.  or  were  summoned  here,  although  one  of 
them  indorsed  upon  the  summons  issued  for  him  to  the  sheriff 
of  this  county,  and  mailed  to  him  by  plaintiff's  attorney,  at 
his  residence  in  another  county,  his  acceptance  of  service  and 
entry  of  appearance.  In  the  case  in  which  the  last  proposi- 
tion was  the  syllabus,  Judge  Harmon,  in  a  well  considered 
case,  said:  'It  will  be  observed  that  it  is  not  provided  that 
when  the  court,  in  any  county,  obtains  jurisdiction  of  a  de- 
fendant, summons  may  issue  to  other  counties  for  other  de- 
fendants, hut  when  the  action  is  rightly  brought,  according 
to  the  statutes,  i.  e.,  in  a  county  where  a  defendant  resides 
;>r  may  be  compelled  to  appear.     It  is  manifest  that  an  action 


Stark  County.  The  second  cause  of 
action  in  I  lie  petition  did  not  aver 
that  the  material  was  furnished  tin- 
der a  'i  in  tract  with  the  owner  of 
the  premises.  Weld:  (1),  That  said 
second  cause  <>f  action  was  insuffi- 
cient; thai  the  fads  alleged  did  not 
create  a  lien  i  on  the  premises  of 
the  Amanda  (las  Co.  in  favor  of 
the  Bolton  Steel  Co.,  for  such  ma- 
terial, and  (2),  That  the  petition 
failed  to  state  a  cause  of  action  for 
the  foreclosure  of  a  lien  and  a  sale 
of  real  estate,  under  §  5022 
[Geal    Code,    §11271),    the    court 


did  not  acquire  jurisdiction  of 
the  subject-matter  of  the  action, 
nor  of  the  person  of  Chapman  by 
service  of  summons  upon  him  in 
Stark  County,  and  that  the  judg- 
ment rendered  on  the  first  cause  of 
action  was  void.  Chapman  v.  The 
Bolton   Steel    Co.,    4   C.    C.   242. 

18  Pugh,  Judge,  in  Kraner  v.  For^ 
rester,  32  W.  L.  B.  199. 

>»  Leaf  v.  Mariott,  29  VV.  L.  B. 
221. 

2<>Gen'l  Code.  §11282  (R.  S. 
§5035),  and  Gen'l  Code,  §  11284 
(R.  S.  5037). 


9  POWER    TO    TRANSFER    REAL    ESTATE.  §  9 

may  not  be  so  rightly  brought,  and  that  the  court  may,  never- 
theless, afterward  obtain  jurisdiction  by  the  consent  of  all 
entitled  to  object.  But  was  it  the  intention  of  the  Legislature 
to  permit  one  to  consent  for  all?  Surely,  this  would  open  the 
door,  especially  in  such  cases  as  this,  to  the  evils  deprecated 
so  strongly  in  another  case.21 

"If  it  be  said  that  a  willing  defendant  may  accomplish  the 
same  thing  by  coming  itito  the  county  so  as  to  permit  service, 
the  answer  is  ita  lex  scripta  est,  and  besides,  the  trouble  and 
expense  of  doing  so  are  a  protection  against  collusion  which 
the  Legislature  may  well  have  intended  to  preserve,  while  a 
serious  question  might  be  raised  as  to  the  acquisition  of  juris- 
diction when  there  is  such  collusion. 

"But,  it  is  said,  acknowledgment  on  the  back  of  the  sum- 
mons or  petition,  is  equivalent  to  service.  Service  of  what? 
In  this  case,  says  plaintiff's  counsel,  of  a  summons  issued  to 
the  foreign  county,  because  it  was  upon  such  a  summons  that 
the  defendant  wrote  his  acknowledgment.  But,  by  the  ex- 
press terms  of  the  law,  the  same  result  would  have  followed, 
had  the  petition  been  mailed  by  him  and  his  indorsement 
made  upon  it,  so  that  the  trouble  and  expense  of  the  summons 
were  wasted.  The  service  to  which  such  acknowledgment 
was  intended  to  be  made  equivalent,  is  the  service  w^hich 
might  be  actually  and  lawfully  made,  equivalent  in  this  case 
to  service  of  summons  in  still  another  county.  It  is  a  statute 
of  evidence,  in  other  words,  substituting  other  proof  of  notice 
of  the  pendency  of  the  action  for  the  summons  and  officer's 
return.  Or  it  may  be  said,  that,  as  the  party  must  be  sum- 
moned, which  can  only  mean  served  with  summons,  in  the 
county,  (Gen'l  Code,  §11277  [R.  S.  §50281),  the  acknowledg- 
ment is  not  equivalent  to  service  in  the  county,  unless  made 
there.  So  voluntary  appearance,  to  be  equivalent  to  s<  rri<<  in 
the  county,  must  be  appearance  there,  i.  e.,  actual,  as  opposed 
to  constructive,  appearance.  But,  however  this  may  be,  in  my 
opinion  Gen'l  Code,  §11287  (R.  S.  §5040),  was  not  intended 
to,  in  any  way,  qualify  or  enlarge  the  provisions  of  Gen'l  Code, 
§  11277  (R.  s!  §  5028 )  and  Gen  'lCode,  §  11288  (R.  S.  §  5035)."- 

It  is  not  permitted  that  one  may  do  indireetly  what  he  may 

2i  Allen   v.   Miller,    11    O.   S.   374.  22  Lamont  v.  Holmes  Ins.  Co.,   10 

W.  L.   B.  414. 


§9 


MERWINE   ON    REAL    ACTIONS. 


10 


not  do  directly.  Hence,  a  plaintiff  is  not  permitted  to  sue 
two  defendants  on  a  contract  in  this  county,  and  serve  one 
of  them  with  summons  in  this  county,  and  the  other  with 
summons  in  another  county  of  the  State,  if  the  action  is  not 
on  a  joint  contract.  If  during  the  trial  it  develops  that  the 
defendant  in  this  county  is  not  jointly  liable  on  the  con- 
tract, the  action  as  to  him  should  be  dismissed,  and  the  sum- 
mons for  the  other  defendant  quashed.23 

The  defendant,  or  defendants,  resident  of  the  county  in 
which  the  suit  is  brought,  and  from  which  the  summons  must 
be  issued  to  another  county  or  counties  in  the  State  for  an- 
other defendant  or  defendants,  must  be  a  real  defendant,  and 
he  must  have  a  substantial  interest  in  the  controversy,  ad- 
verse to  the  plaintiff.  It  is  not  enough  that  the  defendant 
have  a  colorable  interest  in  the  suit.  The  question  of  the 
jurisdiction  of  the  court  over  the  non-resident  defendant  must 
not  be  brought  about  under  a  colorable  or  fictitious  arrange- 
ment. To  allow  a  resident  defendant,  when  the  action  is 
brought,  to  be  a  nominal  defendant,  without  a  real  and  sub- 
stantial interest,  adverse  to  the  plaintiff  against  whom  relief 
is  sought,  would  open  a  wide  door  to  fraud  and  be  the 
means  of   oppression   and  wrong.24 

In  an  action  to  enjoin  the  collection  of  a  judgment,  the 
sheriff  holding  the  execution  is  not  a  necessary  party,  and 
a  summons  in  such  action  cannot  issue  for  a  defendant  in 
another  county.25 


23  Dunn  v.  Hazlett,  4  O.  S.  435. 

24  Allen  v  Miller,  11  O.  S.  374. 
See  also  1  Bates'  Pleading,  Prac- 
tice, Parties  and  Forms,  590,  where 
is  cited  the  following  under  Revised 
Statutes,  (Genl  Code,  §  11282,  R.  S. 
§  5023  I .  Stull  v.  Powell,  70  Neb.  152, 
97  X.  W.  249;  Dunn  v.  Hazlitt,  4 
0.  S.  435;  McKibben  v.  Day,  98  N. 
W.  845;  Christian  v.  Williams,  35 
Mo.  App.  297 ;  Perry  v.  Sharp,  8 
Fed.  15;  Adair  v.  Forrey,  105  X. 
W,  714;  Minnick  v.  Matchett,  10 
Kan.  App.  170;  Ruleman  v.  Hulze, 
32  Kan.  595;  P»rennen  v.  Eggly,  23 
Kan.  123;  Thompson  v.  Montrass, 
2  X.  P.  X.  S.  368;  Maholm  v.  Mar- 
shall, 29  O.  S.  611;  Sparks  v.  Beyer, 


5  Kan.  App.  721;  Harrison  v.  Car- 
bon, 14  Wyo.  246;  McCormic  v. 
Cummins,  59  Neb.  330;  Head  v. 
Daniels,  38  Kan.  1.  See  also 
Ihompson  v.  Massie,  41  0.  S.  307; 
Hadley  v.  Dunlap,   10  O.   S.   1. 

When  a  suit  is  brought  in  one  of 
the  counties  in  which  a  municipal 
corporation  is  situated,  it  i-s  prop- 
erly brought,  and  summons  upon 
the  petition  filed  therein  may  be 
issued  to  any  other  county  against 
one  or  more  defendants.  Fox  v. 
Fostoria,  14  C.  C.  471;  affirmed  in 
60  ().   S.  340. 

2r>  Howard  v.  Levering,  8  C.  C. 
614. 


11 


POWER    TO    TRANSFER    REAL    ESTATE. 


§§10,11 


The  residence  of  one  who  is  serving  a  sentence  of  impris- 
onment is,  for  the  purpose  of  service  of  a  summons,  in  the 
county  where  the  prison  is  located,  and  service  upon  him 
in  a  suit  brought  in  that  county  renders  service  valid  upon 
co-defendants  in  the   county  where  they  reside.20 

Sec.  10.     Local  and  transitory  actions. 

A  local  action  has  been  defined  to  be  "an  action  that  must 
be  prosecuted  in  the  county  where  the  land  lies;"  and  a 
definition  for  a  transitory  action  is.  "an  action  that  can  be 
prosecuted  in  any  county  where  the  defendant  can  be  sum- 
moned. ' '  -' 

Local  actions  are  such  oily  as  are  made  so  by  statute; 
and  all  other  personal  actions  may  be  prosecuted1  in  any 
county   where   process   may   be   served   on   the    defendant.-'* 

An  action  for  consequential  injury  to  land,  or  a  suit  for 
a  mandatory  injunction  requiring  a  defendant  to  abate  a 
nuisance  on  his  own  land,  causing  injury  to  the  land  of  the 
plaintiff,  is,  under  our  code,  not  local  but  transitory;  and 
under  the  statute,29  must  be  brought  in  the  county  where  the 
defendant  resides,  or  may  be  summoned.30 

Sec.  11.     When  the  action  may  be  brought  where  a  part  of 
the  property  is  situated. 

When  the  property  is  situated  in  more  than  one  county, 
the  action  may  be  brought  in  either;  but  in  actions  to  recover 
real  property,  this  can  only  be  done  when  the  property  is 
an  entire  tract.31 


26  Thompson  v.  Montra-s,  2  X.  P. 
N.  S.  368;  Davis  v.  Duffie,  8  Bosw. 
.  (N.  Y.)    617. 

27Genin  v.  Grier,  10  0.  211;  City 
v.   Fox,  60   O.   S.   349. 

2S  City  v.   Fox.  60   O.  S.  340. 

2»Gen'l  Code,  §  11277  ( R.  S. 
§5028). 

so  City  v.  Fox,  60  O.  S.  340. 

siGeii'l  Code,  §  11269  ( R.  S. 
§  5020 ) . 

"A  mortgagee  of  real  property  not 
part  of  an  entire  tract  situate  in 
more  than  one  county,  will  n  t  be 
charged  with  constructive  notice  of 
an  action  for  the  recovery  of  such 
property,  pending  in  a  county  other 


than  that  in  which  the  property  is 
situated,  the  doctrine  of  lis  pen- 
dens does  not  apply,  unless  the 
court  has  acquired,  in  some  manner, 
jurisdiction  of  the  subject-matter 
involved  in  the  suit.  Where,  there- 
fore, in  an  action  to  recover  real 
property  which  is  not  an  entire 
tract,  situate  in  more  than  one 
county,  but  a  separate  tract  lying 
wholly  in  one  county,  the  action  is 
not  brought  in  the  county  where  the 
subject  of  the  action  is  located,  a 
bona  fide  purchaser  of  the  property 
for  a  valuable  consideration  with- 
out actual  notice,  and  residing  in 
the    county    where    the    property    is 


§§  12-14  MERWINE    ON    REAL    ACTIONS.  12 

Sec.  12.  Where  the  action  for  specific  performance  of  a  con- 
tract of  a  sale  of  real  estate  must  be  brought. 

An  action  to  compel  the  specific  performance  of  a  contract 
of  sale  of  real  estate  may  be  brought  in  the  county  where 
the  defendants,   or  any  of  them,   reside.32 

The  action  may  also  be  brought  in  the  county  where  the 
land  is  situated.33 

And  a  court  of  equity  in  one  State,  having  acquired  juris- 
diction over  the  persons  of  the  parties,  may  enforce  specific 
performance  of  a  contract  in  relation  to  lands  in  another 
State.34 

Sec.  13.  When  the  action  should  be  brought  in  the  county 
where  the  cause  of  action  arose. 

Actions  for  the  following  causes  must  be  brought  in  the 
county  where  the  cause  of  action,  or  some  part  thereof,  arose : 
(1)  For  the  recovery  of  a  fine,  forfeiture,  or  penalty  imposed 
by  a  statute,  except  that,  when  it  is  imposed  for  an  offense 
committed  on  a  river  or  other  watercourse,  or  a  road,  which 
is  the  boundary  of  the  State,  or  of  two  or  more  counties,  the 
action  may  be  brought  in  any  county  bordering  on  such  river, 
watercourse,  or  road,  and  opposite  the  place  where  the  offense 
was  committed.  (2).  Against  a  public  officer,  for  an  act  done 
by  him  in  virtue  or  under  color  of  his  office,  or  for  a  neg- 
Led  of  his  official  duty.  (3)  On  the  official  bond,  or  under- 
taking of  a  public  officer.'1' 

Sec.  14.     Where  actions  other  than  those  mentioned  in  G-en'l 
Code,  §  11268  (R.  S.  §  5019)  and  Gen'l  Code,  §  11272  (R. 
S.   §  5023),  must  be  brought. 
An   art  inn    other  than   one   of  those   mentioned   in   four   pre- 
ceding sections   (Gen'l  Code.  §§11271,  11270,  11269  and  11268 

Bituatcd,   will    lint    lie   charged    with  rik  v.  Groenwald,  1  ('.  ('.  X.  S.  21!). 

constructive  notice  of  the  pendency  ■'  Burnly  v.  Stephenscn,  24  ().  s. 

of   such    action    ;it    the    time  <>f   his  174:  Penn  v.  Hayward,  14  ().  S.  :!()2. 

purchase,   bo   as   to   prevent    Ins  ac  w*  Gen'l      (ode,      S  11271       |  I!.    S. 

quiring  a  valid  interest   in  theprop-  s  5022  i  •.  Bee  also  in  this  connection 

erty."     Benton   v.  Shafer,  47   0.  S.  State    v.    Newton,    26    < ».    s     200; 

117.     s,-,-  Gen'l   Code,   §§11303  and  backworth    v.    Robinson,    31    0     S. 

11304    (R.  S.  §5055  and  §5056.)  (».">:>:    Kraner    v.    Forester,    1    0.    D. 

szGen'l      Code,      §11270      (R.    S.  t;i!);    Kyde    v.    Exchange    Bank,    56 

§5021    .  Neb.    .",:,7-.    Fishburn   v.    Mulott,   72 

Owens    \.    Hall,    13    <».   s.   571:  S.  Car.  572. 
Osborne  v.  Lidy,  51   0.  S.  96;   Safa- 


13 


POWER   TO   TRANSFER    REAL    ESTATE. 


§   U 


[R.  S.  §§  5022,  5021,  5020,  50191),  against  a  corporation 
created  under  the  laws  of  this  State,  may  be  brought  in 
the  county  in  which  such  corporation  is  situated,  or  has 
or  had  its  principal  office  or  place  of  business,  or  in  which 
such  corporation  has  an  office  or  agent,  or  in  any  county  in 
which  a  summons  may  be  served  upon  the  president,  chair- 
man, or  president  of  the  board  of  directors  or  trustees  or 
other  chief  officers;  but  if  such  corporation  is  an  insurance 
company,  the  action  may  be  brought  in  the  county  wherein 
the  cause  of  action  or  some  part  thereof  arose ;  and  if 
such  corporation  be  organized  for  the  purpose  of  mining 
or  operating  for  petroleum,  oil  or  gas,  either  exclusively  or 
in  connection  with  other  business,  the  action  may  be  brought 
in  the  county  where  such  corporation  owns  or  operates  a 
mine,  or  a  well  for  petroleum,  oil  or  gas,  and  the  cause  of 
action,  or  some  part  thereof,  arose.36 


seGen'l  Code,  §  11272  (R.  S. 
§  5023 ) . 

This  statute  authorizes  an  action 
upon  a  policy  of  life  insurance  is- 
sued by  a  company  organized  under 
the  laws  of  this  State,  to  be  brought 
in  the  county  where  the  death  of  the 
party  occurred.  Union  Central,  etc. 
v.  Pryer,  36  O.  S.  534.  Under  the 
provisions  of  this  statute  an  action 
may  be  maintained  by  the  directors 
of  a  county  infirmary,  against  a  city 
of  the  second  class  in  another  coun- 
ty, where  the  boundary  of  such  city 
is  identical  with  those  of  a  town- 
ship, and  such  township  has  thereby 
become  merged  in  the  city,  for  ex- 
penses, incurred  in  furnishing  tem- 
porary relief  to,  and  removing  an 
insane  pauper,  having  a  legal  set- 
tlement in  such  city;  and  such  ac- 
tion may  be  brought,  either  in  the 
county  for  which  the  plaintiffs  are 
infirmary  directors,  and  where  the 
relief  was  furnished,  or  in  the  coun- 
ty in  which  the  city,  defendant,  is 
situated.  Directors,  etc.  v.  City,  15 
0.  S.  409.  §5023  (Gen'l  Code, 
§  11272)  applies  to  a  corporation 
under  a  special  charter,  which  has 
brought  itself  under  the  general 
laws.  Knox  v.  Bowersox,  6  C.  C. 
275. 


An  Ohio  corporation  can  be  sued 
in  the  county  only  in  which  the  cor- 
poration is  situated,  or  has,  or  had 
its  principal  place  of  business,  or 
in  which  an  office  or  agent  is  main- 
tained. The  word  "may"  in  §  50z? 
(Gen'l  Code,  §11272).  should 
be  read  "must."  Kinsey  v. 
Burgess,  etc.,  4  X.  P.  293;  Stanton 
v.  Enquirer  Co.,  7  X.  P.  589;  see 
also  Railroad,  etc.  v.  Morey,  47  O. 
S.  210.  A  city  partly  situated  in 
two  counties  has  a  situs  in  the  coun- 
ty where  its  municipal  offices  and 
government  are  located;  and  must, 
when  the  action  is  not  local,  be  sued 
in  that  county.  City  v.  Fox.  (50  O. 
S.   340. 

When  a  corporation  is  properly 
sued  with  another  defendant  in  the 
county  where  the  other  defendant 
resides,  or  has  his  place  of  business, 
a  summons  may  be  sent  and  served 
upon  the  corporation  in  the  county 
where  its  principal  place  of  business 
is  located.  Gen'l  Code,  §  11272. 
(R.  S.  §5023),  as  amended  (93  O. 
L.  125),  should  be  construed  in 
connection  with  Gen'l  Code,  §  11282, 
(R.  S.  §  5035).  Baldwin  v.  Wilson, 
7   N.   P.   506. 


§§  15-18 


MERWINE   ON    REAL    ACTIONS. 


14 


Sec.  15.     Venue  as  to  railroads  and  stage  companies. 

An  action  against  the  owner  or  lessee  of  a  line  of  mail 
stages,  or  other  coaches,  for  any  injuries  to  person  or  prop- 
erty upon  the  road  or  line,  or  upon  a  liability  as  carrier,  and 
an  action  against  the  railroad  company  or  street  railroad 
company,  owning  or  operating  a  railroad  or  street  railroad 
within  the  State,  or  against  a  transportation  company  own- 
ing or  operating  an  electric  traction  road  located  upon  either 
bank  of  any  canal  belonging  to  the  State  may  be  brought 
in  any  county  through  or  into  which  such  line,  railroad,  street 
railroad  or  electric  traction  road  passes  or  extends.37 

Sec.  16.     Venue  as  to  turnpike  company. 

An  action  other  than  one  of  these  mentioned  in  section  five 
thousand  and  nineteen,  five  thousand  and  twenty,  five  thou- 
sand and  twenty-one,  and  five  thousand  twenty-two  of  the 
statute  (Gen'l  Code,  §§  11268,  11269,  11270  and  11271),  against 
a  turnpike  road  company,  may  be  brought  in  any  county  in 
which  any  part  of  the  road  lies.38 

Sec.  17.    Venue  prescribed  by  charter  of  corporation. 

When  the  charter  of  a  corporation  created  under  the  laws 
of  this  State  prescribes  the  place  where  suit  must  be  brought, 
that  provision   must   govern.39 

Sec.  18.    Where  actions  against  non-residents  may  be  brought. 

An  action  other  than  any  of  those  mentioned  in  Gen'l  Code, 
§§  11268,  11269,  11270,  11271  (R.  S.  §§  5019,  5020,  5021,  5022), 


37  Gen'l  Code,  §  11273  (R.  S. 
8  5024. I 

This  section  applies,  no  matter 
what  the  cause  of  action  may  be. 
Railway  v.  Jewett,  37  O.  S.  649.  If 
railway  enters  its  appearance,  its 
line  need  not  pass  through  county 
where  tlie  action  is  begun.  Railway 
v.  Morey,  47  O.  S.  207.  A  company 
operating  a  leased  line  comes  with- 
in this  provision  of  the  statute. 
Railway  v.  McLean.  1  ('.  C.  112; 
Swan  v.  Railway.  4  O.  D.  71.  An 
action  against  a  railway  company 
in  the  hands  of  a  receiver  does  not 


authorize  service  of  summons  on 
the  ticket  agent.  Collins  v.  Balti- 
more, etc.,  7  N.  P.  270.  A  railway 
company  may  be  served  with  sum- 
mons in  a  county  through  which  it 
does  not  run  when  properly  joined 
as  a  co-defendant.  Railway  v.  Mc- 
Peek,   16  C.  C.  87. 

38  Gen'l     Code, 
§  5025 ) . 

so  Gen'l  Code, 
§  5026 )  ;  see  Portage,  etc.  v.  Stukey, 
18  O.  455;  Portage,  etc.  v.  West,  6 
O.  S.  599 ;  Knox,  etc.  v.  Bowersox, 
6  C.  C.  275. 


§11274      (R.     S. 
§  11275      (R.    S. 


15  POWER   TO    TRANSFER   REAL   ESTATE.  §  18 

against  a  non-resident  of  this  State,  or  a  foreign  corporation, 
may  be  brought  in  any  county  in  which  there  is  property  of,  or 
debts  owing  to,  the  defendant,  or  where  such  defendant  is 
found,  or  where  the  cause  of  action  or  some  part  thereof 
arose.40 

Our  Supreme  Court  in  discussing  this  provision  of  the 
statute,  said : 

"Power  to  hear  and  determine  a  controversy  is  jurisdic- 
tion, and  it  is  complete  when  both  the  subject  matter  of  the 
controversy  and  the  parties  to  it  are  properly  before  the 
court.  In  determining  whether  a  given  subject  matter  is 
within  the  jurisdiction  of  a  court,  regard  to  the  parties  is 
not  involved.  The  subject  matter  of  the  original  action  was 
a  contract  alleged  to  have  been  broken  by  defendant.  There 
is  no  question  but  that  the  court  of  common  pleas  had  juris- 
diction of  this  subject  matter,  without  regard  to  the  place 
where  the  contract  was  made  or  where  it  was  violated.  The 
point  made  by  the  defendant  is,  that  the  court,  upon  the  facts 
stated  in  the  petition,  had  no  power  to  issu?  its  process 
against  the  defendant,  or  even  after  a  voluntary  appear- 
ance, to  proceed  to  render  judgment  against  it  upon  the 
cause  of  action  stated  in  the  petition. 

"The  general  jurisdiction  of  the  court  of  common  pleas, 
over  the  person  of  litigants,  is  not  confined  to  residents  or 
natural  persons;  non-residents  of  the  State  and  foreign  cor- 
porations are  as  much  subject  to  its  jurisdiction  as  are  resi- 
dents and  domestic  corporations.  Except  in  actions  of  a  local 
nature,  our  courts  are  open  to  all  who  may  seek  relief  therein, 
against  anyone  who  can  be  reached  by  its  process.  We  know 
of  no  principle  that  will  exempt  a  foreign  corporation,  which 
voluntarily  comes  into  this  State,  from  liability  to  answer 
any  complaint  which  may  be  preferred  against  it  in  the 
courts  of  the  State,  that  would  not  exonerate  natural  per- 
sons under  like  circumstances.     *     *     * 

"The  general  principle  declared  in  this  provision  of  the 
statute  has  no  reference  to  actions  upon  causes  arising  in 
this  State.  No  matter  where  the  cause  arose,  if  the  subject 
matter  be  within  the  jurisdiction   of  the  court.     Nor  is  the 

wGen'l     Code,     §11276      (R.   S.   §5027). 


§18 


MERWINE    ON    REAL    ACTIONS. 


16 


rule  confined  to  corporations  other  than  insurance  companies. 
Any  foreign  corporation  which  may  be  found  in  this  State, 
may  be  sued  in  any  county  in  this  State,  in  any  court  having 
jurisdiction  of  the   subject    matter  of  the   suit. 


"  41 


An  action  brought  to  enforce  the  statutory  liability  of 
a  stockholder  in  a  corporation  is  not  "rightly  brought"  in 
this  county  under  favor  of  section  five  thousand  and  twenty- 
seven  (Gen'l  Code,  §  11276)  and  five  thousand  and  thirty-five 
(Genl  Code,  §11282),  When  none  of  the  defendants  resided, 
or  could  be,  or  were  summoned,  here.'-' 

The  provisions  of  the  statute  under  consideration43  provide 
that  the  action  may  be  brought  against  a  non-resident  of 
the  State,  in  any  county  in  which  he  may  have  property  or 
debts  owing  to  him,  or  where  he  may  be  found.  If  such  non- 
resident cannot  be  found  and  served  personally,  the  court 
cannot  obtain  jurisdiction  unless  the  action  be  one  in  which 
constructive  service  may  be  had  on  the  defendant.  "Where 
in  such  action  the  scope  and  purpose  of  it  is  to  recover  a 
money  judgment  and  enforce  its  collection  by  the  writ  of 
execution,  section  five  thousand  and  thirty-five  of  the  statute 
(Gen'l  Code,  §1128.2),  does  not  authorize  a  personal  service, 
out  of  the  State,  on  such  non-resident.44 

An  action  begun  by  a  receiver  appointed  by  the  court  to 
wind  up  the  affairs  of  a  corporation,  to  collect  an  unpaid 
subscription,  is  a  suit  at  law,  and  it  is  not  proper  practice 
for  such  receiver  to  join  in  one  action  all  delinquent  stock- 
holders  as  defendants,  resident  as  well  as  non-resident  of 
the  county.  The  service  of  summons  upon  non-residents  of 
the  countv  in  such  an  action  will  be  set  aside.45 


4i  By  the  court  in  Handy  v.  In- 
surance Co.,  37  O.  S.  370.  At  the 
time  this  action  was  begun  the  stat- 
ute contained  this  additional  provi- 
sion: "But  if  said  defendant  he  a 
foreign  insurance  company,  the  ac- 
tion may  be  brought  in  any  county 
where  the  cause,  or  some  part  there- 
of, arose."  See.  in  thia  connection, 
Rainey  v.  Jefferson,  etc.,  8  C.  C. 
674;  Osborne  v.  Lidy,  51  O.  S.  90. 
Service   by    publication    is   sufficient 


in  proceedings  in  garnishment 
against  a  non-resident  debtor.  Goe- 
bel  v.  Bank,  3  N.  P.  109. 

4-  Lamont  v.  Home,  etc.,  10  W. 
L.  B.  413.  But  see  Swan  v.  Rail- 
road, 4  0.  D.  71;  Hull  v.  Standard 
Coal  &  Iron  Co.,  7  X.  P.   157. 

*3Gen']  Code,  §  11276  (R.  S. 
§5027). 

44  Williams  v.  Welton,  28  O.  S. 
451. 

45  Smith  v.  Johnson,  57  O.  S.  486. 


17  POWER   TO    TRANSFER    REAL    ESTATE.  §  19 

Sec.  19.     General  rule  as  to  where  all  other  actions  must  be 
brought. 

Every  other  action  must  be  brought  in  the  county  in  which 
a  defendant  resides  or  may  be  summoned,  except  actions 
against  an  executor,  administrator,  guardian,  or  trustee, 
which  may  be  brought  in  the  county  wherein  he  was  ap- 
pointed or  resides,  in  which  cases  summons  may  issue  to 
any  county.46 

The  rules  of  law,  as  to  where  actions  may  be  prosecuted, 
are  reasonable  and  convenient  and  should  be  construed  lib- 
erally with  a  view  to  advancing  the  remedies  it  affords,  and 
such  construction  of  the  foregoing  statute 47  authorizes  ac- 
tions against  executors,  administrators,  guardians  or  trustees 
to  be  brought,  either  in  the  county  where  they  reside,  or  were 
appointed,  or  in  which  personal  service  of  a  summons  may  be 
obtained  upon  them.4S 

Under  the  provisions  of  Gen'l  Code.  §  11277  (R.  8.  §  5028), 
where  the  allegations  of  the  petition  upon  its  face  make  a  ease  in 
which  all  the  defendants  are  rightfully  joined,  and  service  of 
summons  is  made  on  one  or  more  of  them  in  the  county  where 
suit  is  brought,  and  on  the  others  in  another  county,  the  ques- 
tion  of  the  jurisdiction  of  the  court  over  the  persons  of  the 
defendants  served  in  such  other  county,  must  be  raised  by 
answer,  under  sections  five  thousand  and  sixty-one  and  five 
thousand  and  sixty-three  of  the  statutes  (G-en'l  Code,  §§  11309 
and  11311).49 

An  action  to  recover  damages  under  the  act  requiring  com- 
pensation for  causing  death  by  a  wrongful  act.  neglect,  or 
default,  may  be  brought  in  any  county  in  the  State  where 
the  defendant,  or  any  one  of  the  defendants,  reside  or  may 
be  served;  and  in  such  ease,  where  there  were  several  de- 
fendants, against  all  of  whom  a  good  cause  of  action  is  al- 
leged, some  of  whom  are  served  in  the  county,  and  others 
reside  and  are  served  in  another  county  than  that  where  the 
suit  is  brought,  the  validity  of  the  service  of  summons  in 
such  other  county,  and  the  jurisdiction   of  the  court  over  the 

4';On'l  Code,      §  11277      (R.   S.  * 8  Osborne  v.  Lidy,  51  O.  S.  07. 

§  5028  i .  40  Drea    v.    Carrington,    32    O.    fc>. 

47  Gen'l  Code,      §11277      (R.    S.       595. 
§5028). 


§§20,21 


MERWINE   ON    REAL    ACTIONS. 


18 


persons    of    the    non-resident    defendants    depends    upon    the 
truth  of  the  allegations  of  the  petition.50 

In  an  action  to  foreclose  a  mortgage,  in  which  a  personal 
judgment  is  asked  by  plaintiff  such  personal  judgment  may 
be  entered  in  the  case  against  a  defendant  served  with  a  sum- 
mons in  a  county  other  than  that  in  which  the  lands  lie  and 
the  action  is  brought.51 

Sec.  20.     How  change  of  venue  secured. 

When  it  appears  to  the  court  that  a  fair  and  impartial  trial 
cannot  be  had  in  the  county  where  the  suit  is  pending,  the 
court  may  change  the  place  of  trial  to  some  adjoining  county ; 
and  if  the  application  is  made  in  the  superior  court,  the 
change  must  be  made  to  another  superior  court,  or  to  the 
common  pleas  court  of  an  adjoining  county.52 

Sec.  21.     Change  of  venue  in  suit  by  or  against  a  corporation. 

When  a  corporation  having  more  than  fifty  stockholders 
is  a  party  in  an  action  pending  in  a  county  in  which  the  cor- 
poration keeps  its  principal  office,  or  transacts  its  principal 
business,  if  the  opposite  party  make  affidavit  that  he  cannot, 
as  he  believes,  have  a  fair  and  impartial  trial  in  that  county, 
and  his  application  is  sustained  by  the  several  affidavits  of 
five  credible  persons  residing  in  such  county,  the  court  is 
required  to  change  the  venue  to  the  adjoining  county  most 
convenient  for  both  parties ;  the  cost  of  summoning  and  im- 
paneling a  jury,  and  the  fees  of  said  jury  sitting  in  the  trial 
of  the  case  in  the  court  of  the  county  to  wThich  the  venue 
is  changed  will  be  allowed  and  paid  by  the  commissioners  of 
the  county  from  which  said  action  is  sent.53 


s. 


s. 


so  Drea    v.    Carrington,    32    0.    S 
595. 

si  Maholm   v.   Marshall,   29   0 
611. 

saGen'l     Code,     §11415      (R. 
§  5029). 

The  power  to  change  venue  is  dis- 
cretionary with  the  court.  Bank  v. 
Ward,  11  O.  128;  Lauer  v.  Cincin- 
nati, 4  X.  P.  252.  Right  to  de- 
mand venue  waived,  when.  Shelly 
t.  Jefferson,  9   0.   S.  606. 

B3Gen'l      Code,      §  11416      (R.   S. 


§5030).  See  Lauer  v.  Cincinnati,  4 
N.  P.  252,  as  to  affidavits  and 
proof;  but  see  also  5  N.  P.  60.  As 
to  change  of  venue  in  criminal  case, 
see  State  v.  McCarty,  52  O.  S.  363. 
As  to  what  the  allegations  in  the 
affidavits  should  he,  see  Snell  v. 
Cincinnati,  etc.,  60  O.  S.  256.  The 
act  is  constitutional.  Ibid.  As  to 
change  of  venue  when  the  judge  is 
interested,  see  R.  S.  §550  (Gen'l 
Code,  §1687);  State,  etc.  v. 
Shaw,  43  O.   S.   324;    State,  etc.  V. 


19 


POWER   TO    TRANSFER    REAL   ESTATE. 


§§  22-24 


Sec.  22.  Summons  may  not  be  served  on  an  attorney  while  in 
another  county  on  professional  business  only. 
Where  service  of  summons  is  had  on  an  attorney,  while 
in  another  county  attending  to  professional  business  only, 
such  service  is  good  until  quashed  or  set  aside;  and  until  the 
same  is  set  aside,  another  summons  can  not  be  legally  issued  and 
served  upon  him.54 

Sec.  23.     In  what  cases  persons  may  not  be  summoned. 

A  member  of  the  Senate  or  House  of  Eepresentatives,  or  an 
officer  of  either  branch  of  the  General  Assembly,  shall  be  privi- 
leged from  answering  to  any  suit  which  may  be  instituted 
against  him  in  a  county  other  than  the  one  in  which  he  re- 
sides, upon  a  cause  of  action  which  accrued  ten  days  before 
the  first  day  of  the  session  of  the  General  Assembly  of  which 
he  is  an  officer  or  a  member;  and  all  proceedings  in  actions 
to  which  any  such  person  is  a  party  shall  be  stayed  during 
such  session,  and  during  the  time  necessarily  employed  in 
going  thereto   and  returning  therefrom.55 

Sec.  24.     At  what  time  summons  is  returnable. 

When  the  time  for  bringing  parties  into  court  is  not  fixed 
by  statute,  the  summons  is  returnable  on  the  second  Monday 
after  its  date ;  but  when  it  is  issued  to  any  other  county,  it 


YVinget,  37  O.  S.  153;  State,  etc.  v. 
Rabbitts,  46  0.  S.  178.  As  to  what 
the  allegations  must  be  in  such 
case,  and  as  to  who  may  join  in 
the  application,  see  State,  etc.  v. 
Wolfe,  11  C.  C.  591.  As  to  mean- 
ing of  the  term  "most  convenient," 
see  Wilson  v.  Cincinnati,  etc.,  7  N. 
P.  511.  As  to  what  are  the  issu- 
able facts  to  be  heard  by  common 
pleas  court,  see  Dodd  v.  Mt.  Adams, 
etc.,  20  C.  C.  709. 

54  Whitman  v.  Sheets,  20  C.   C.  1. 

ssGen'l  Code,  §11278  (R.  S. 
§5031). 

A  person  attending  the  hearing  of 
his  own  suit  in  an  adjoining  county 
is  privileged  from  the  service  of 
summons.  Andrews  v.  Lembeck,  46 
O.    S.    38.      A    person   tricked    into 


another  county  for  the  purpose  of 
serving  him  with  a  summons  there, 
can  have  such  service  set  aside.  Pil- 
cher  v.  Graham,  18  C.  C.  5.  A 
member  of  the  State  Board  of  Arbi- 
tration cannot  be  served  with  sum- 
mons in  a  county  where  he  may  be 
on   official   business. 

A  person  brought  into  this  State 
by  requisition  in  a  criminal  case 
cannot,  while  here,  be  served  with  a 
summons.  Compton  v.  Weder,  40 
.0.  S.  130.  The  same  rule  holds 
where  service  is  made  upon  a  crim- 
inal who  is  being  taken  through  the 
State  on  requisition  from  one  State 
to  another.  Dueber  v.  Dalzell,  19 
W.  L.  B.  269.  See  Kinkead  s  Prac- 
tice, §  119. 


§25 


MERWTNK    ON    REAL    ACTIONS. 


20 


may  be  made  returnable,  at  the  option  of  the  party  having 
it  issued,  on  the  third  or  fourth  Monday  after  its  date;  and 
the  day  of  the  month  on  which  it  is  returnable  shall  be  stated 
therein.56 

The  service  of  summons  upon  the  return  day  is  not  void, 
but  voidable,  and  may  be  set  aside  by  a  motion  filed  for  that 
purpose.57 

A  right  to  object  to  such  service  is  waiv«d  by  tiling  an 
answer/'* 

A  judgment  entered  by  default  before  the  expiration  of 
the  day  named  in  the  summons  for  answer,  will  be  reversed 
on  error.59 

Where  an  amended  petition  is  filed  after  summons  was 
issued  and  served  on  the  filing  of  the  original  petition,  no 
new  summons  need  be  issued  and  served.  However,  where 
the  cause  of  action  is  changed  by  the  new  pleading,  a  sum- 
mons must  be  issued  and  served.  If  affirmative  relief  is  asked 
on  a  cross  petition  and  a  personal  judgment  asked  there- 
under, the  parties  against  whom  such  relief  and  judgment  is 
sought  should  be  served  with  a  summons. 


Sec.  25.     Issuance  of  alias  writs. 

When  a  writ  is  returned  "not  summoned,"  other  writs  may 
be  issued,  until  the  defendant  is  summoned ;  and  when  the 
defendants  reside  in  different  counties  writs  may  be  issued 
to  such  counties  at  the  same  time.60 


seGen'l  Code,  §  11283  (R.  S. 
§  5036 )  ;  Devol  v.  Culver,  1  W.  L. 
M.  588. 

B7  Mics^e  v.  McCoy,  17  0.  S.  225. 

ssSchailVr  v.  Waldo,  7  O.  S.  310. 

so  Williamson  v.  Nicklin,  34  0.  S. 
123.  A  judgment  so  entered  by  mis- 
take is  not  a  mistake,  neglect  or 
omission  of  the  clerk  within  the 
meaning  of  §.§  528  and  529  of  the 
Code.  (Gen']  (  ode,  SS  1  1277,  and 
§  11115.  i  Ibid.  See  also  Ensign 
v  Rogencamp,  13  Neb.  30;  Williams 
v.  Welton,  28  0.  S.  451,  as  to  the 
effect  <>f  summons,  irregularly 
served.  A  summons  to  appear  and 
answer  in  ?.  civil  case  may  be  served 
on  Sunday.  Stapleton  v.  Reynolds, 
5  A.  L.  11.  242;  Hastings  v.  Colum- 


bus, 42  0.  S.  585.  Where  in  an 
action  in  the  court  of  a  justice  of 
the  peace  service  of  summons  is 
had  less  than  three  days  before  the 
day  of  the  appearance,  the  judg- 
ment is  void.  Richter  v.  Thornton, 
10  C.  C.  G37.  See  also  Robbins  v. 
Clemens,  41   0.  S.  285. 

'••"Gen'l  Code,  §  11284  ( R.  S. 
§  5037  i . 

The  service  of  an  alias  summons, 
issued  and  served  within  the  life  of 
a  prior  summons,  is  not  void  or 
voidable  when,  at  the  time  the  same 
was  issued,  the  prior  summons  was 
not  in  the  hands  of  the  officer,  nor 
under  his  control.  Williams  v.  Wel- 
ton, 28  O.  S.  451. 


21 


POWER   TO   TRANSFER    REAL    ESTATE. 


§§26,27 


Sec.  26.     By  whom  service  of  summons  may  be  made. 

The  summons  shall  be  served  by  the  officer  to  whom  it  is 
directed,  who  is  required  to  indorse  on  the  original  writ  the 
time  and  manner  of  service,  or  it  may  be  served  by  any 
person  not  a  party  to  the  action,  appointed  by  such  officer; 
but  the  authority  of  such  person  must  be  indorsed  on  the 
writ;  and  when  the  writ  is  served  by  a  person  appointed  by 
the  officer  to  whom  it  is  directed,  or  when  the  service  is 
made  out  of  the  State,  the  return  must  be  verified  by  oath.01 

If  the  summons  is  directed  to  the  sheriff  of  one  county, 
this  will  not  authorize  the  sheriff  of  another  county  to  make 
service.62 

The  statute  authorizes  service  of  the  writ  by  any  one  not 
a  party  to  the  action,  but  the  person  to  serve  the  writ  must 
be  appointed  by  the  officer,  and  the  authority  of  such  person 
must  be  indorsed  on  the  writ.  This  is  imperative  language 
and  admits  of  no  doubtful  meaning.63 

The  affidavit  made  out  of  the  State,  verifying  the  return 
of  a  service  of  summons,  in  pursuance  of  this  statute,  must 
be  made  before  a  person  authorized  by  the  statute  to  take 
depositions.64 

Sec.  27.     What  parties  are  bound  by  the  return. 

An  official  return  of  the  manner  of  the  service  of  the  sum- 
mons in  an  action,  duly  made  by  a  sworn  officer  is,  as  be- 
tween the  parties  and  privies  to  the  action  and  others  whose 
rights  are  necessarily  dependent  upon,  conclusive  as  to  the 
facts  stated  therein,  until  vacated  or  set  aside  by  due  course 
of  law.05 


eiGen'l  Code,  §11285  (R.  S. 
§  5038 ) . 

en  Collins  v.  Baltimore,  7  N.  P. 
270. 

ea  Barry  v.   Hovey,   30   0.   S.   348. 

fl*  Fitch  v.  Campman,  31  O.  S. 
646. 

es  Phillips  v.  Ehvell,  14  O.  S.  240; 
Gwyn  on  Sheriffs,  473;  Hill  v. 
Kling,  4  O.  137;  Angier  v.  Ash,  fi 
Foster.  105;  Diller  v.  Roberts,  13 
Serg.  and  R.  00;  Bott  v.  Burnell,  11 
Mass.  105;  Whittaker  v.  Sumner, 
7  Pick.  555;  Barrett  v.  Copeland, 
18  Vermont,  €9;   Wilson  v.  Hurst, 


1  Pet.  C.  C.  441;  Bruce  v.  Holden, 
21  Pick.  189.  As  to  the  kind  of 
service  as  will  be  lis  pendens,  see 
Bary  v.  Hovey,  30  O.  S.  344. 

"Where  a  judgment  is  directly  at- 
tacked for  want  of  service,  it  is 
proper,  on  a  motion  to  vacate  the 
judgment,  to  receive  evidence  that 
service  was  or  was  not  made,  al- 
though such  evidence  be  in  contra- 
diction of  the  record.  In  such  case 
the  sheriff's  return  is  nut  conclu- 
sive." Parker  v.  Van  Dorn,  etc., 
23  C.  C.  444,  following  Kingbo- 
rough  v.  Tousley,  56  O.  S.  450. 


§  28  MEKWINE   ON    REAL    ACTIONS.  22 

Sec.  28.     The  manner  in  which  summons  is  served. 

The  service  is  made  by  delivering,  at  any  time  before  the 
return  day.  a  copy  of  the  summons,  with  the  indorsements 
thereon,  to  the  defendant  personally,  or  by  leaving  a  copy 
at  his  usual  place  of  residence,  or,  if  the  defendant  is  a  part- 
nership sued  by  its  company  name,  by  leaving  a  copy  at  its 
usual  place  of  doing  business,  or  with  any  member  of  such 
partnership;  and  the  return  must  be  made  at  the  time  men- 
tioned in  the  writ,  and  the  time  and  manner  of  service  shall 
:be  stated  on  the  writ. 

If  the  sheriff  return  that  he  left  a  copy  of  the  summons 
at  the  residence  of  the  defendant,  it  is  a  sufficient  service. 
There  is  no  substantial  difference  between  the  residence  of 
a  person  and  his  usual  place  of  residence.66 

A  summons  against  A  and  B.  who  were  husband  and  wife, 
was  returned  indorsed:  "Served  the  same  b}'  leaving  at  each 
of  the  within  named  defendants'  *  *  *  usual  place  of  res- 
idence a  certified  copy  of  the  within  summons,  etc.  Sheriff's 
fees:  Service,  45,  Copies  50,  etc.;"  this  was  held  a  good 
service  upon   each  of  the  defendants.67 

And  where  the  service  is  a  personal  service  by  the  sheriff, 
or  his  deputy,  of  the  original  writ  of  summons  upon  a  de- 
fendant, and  the  proper  return  thereof  made  by  such  officer 
on  a  duplicate  writ  issued  by  the  clerk  of  the  court,  this,  it 
has  been  held,  was  a  substantial  compliance  with  sections 
five  thousand  and  thirty-eight  and  five  thousand  and  thirty- 
nine  of  the  statutes  (Gen'l  Code,  §§11285  and  11286).68 

Under  the  statute  it  is  not  a  service  of  the  summons  to 
leave  it  at  the  "defendant's  usual  place  of  business"69  nor 
is  it  a  good  service,  where  the  sheriff,  in  a  case  where  a  sum- 
mons was  issued  against  three  defendants,  makes  his  return 
in  these  words:  "Served  by  leaving  a  copy  of  this  writ  at 
the  residence  of  the  within  named  defendant,"  nor  is  it  a 
good  service  against  all  of  the  defendants,  or  against  either 

* 

en  Walk,  v.  Bank,   15   0.  288;   see  §  11285,  (R.  S.  §5038)  ;  Gen'l  Code, 

also    Elliott    v.    Platter,    43    O.    S.  §2871     (R.    S.    §1244). 
198;    Vnnrlement  v.  Trisler,  4  N.  P.  67  Elliott  v.  Platter.  43  O.  S.   198. 

37.     As  to  power  of  deputy  in  ser-  68  Gould  v.  Rose,   17   C.  C.   181. 

vice    of    summons,    see    Littleton    v.  go  Lambert    v.    Sample,    25    0.    S. 

Marshall,  36  W.  L.  B.  301;   Hall  v.  336. 
Lowry,    Tappan,    149;    Gen'l    Code, 


23  POWER   TO   TRANSFER    REAL   ESTATE.  §§  29,  30 

of  them,  or  any  of  them;70  nor  will  the  service  be  sufficient 
where  the  sheriff's  return  does  not  state  that  he  gave  the 
defendant  a  copy  of  the  indorsement  on  the  summons;71  nor 
can   a  defendant  be  served  by  leaving  a  copy  at  his  store.72 

Sec.  29.     Service  of  partners  in  attachment — Replevin. 

In  a  civil  action  for  the  recovery  of  money,  the  plaintiff 
may,  on  the  ground  that  the  defendant  is  a  non-resident  of 
this  State,  have  an  attachment  against  the  property  of  a  de- 
fendant partnership  of  which  all  the  members  reside  out  of 
the  State,  Which  was  formed  for  the  purpose  of  doing  busi- 
ness in  this  State  and  which  has  its  usual  place  of  doing 
business  in  this  State.  Such  partnership  may  be  sued  by  its 
company  name,  and  service  may  be  had  by  leaving  a  copy 
of  the  summons,  with  the  indorsements  thereon,  at  its  usual 
place  of  doing  business  in  this  State.73 

An  action  in  replevin  against  a  firm  of  co-partners,  resi- 
dent of  the  State,  under  the  firm  name,  must  be  brought  in 
the  county  where  such  firm  has  its  place  of  business,  not  in 
the  countv  where  the  goods  are  found.74 


&* 


Sec.  30.     What  is  equivalent  to  service  of  summons. 

An  acknowledgment  on  the  back  of  the  summons  or  peti- 
tion, by  the  party  sued,  or  the  voluntary  appearance  of  a 
defendant,  is  equivalent  to  service.75 

The  most  usual  method  of  entering  an  appearance  is  the 
method  mentioned  above.  The  customary  way  of  entering 
a  voluntary  appearance  is  by  separate  paper  containing  the 
caption  and  number  of  the  case  and  reciting  that  the  defend- 
ants, undersigned,  waive  the  issuing  and  service  of  summons 
upon  them  in  the  action,  and  voluntarily  enter  their  appearance 
therein.  But  there  are  other  methods  by  which  an  appearance 
may  be  entered.  The  following  acts  and  conduct  of  a  defendant 
have  been  considered  by  the  court  as  an  entry  of  appearance 
in  an  action : 

to  Gamble  v.  Warner,  16  0.  371.  73  Byers  v.  Schlupe,  51  0.  S.  300. 

«  Bronton  v.  Allston.  4  W.  L.  M.  ™  Farwell  v.  Root,    36   W.  L.  B.   7. 

588.     But  this  may  be  corrected  by  ".  Gen'l     Code,     §11287      (R.     S. 

amendment.      Stuart   v.    Day,   3    \Y.  §5040).    See    Xo.    71    for    form    of 

L.  M.  214.  waiver  of  summons  and  entry  of  ap- 

~-  Hays   v.   Bank,   W.  563.  pearance. 


§31  MERWINE   ON    REAL   ACTIONS.  24 

The  filing  of  a  set-off  in  an  action  before  a  justice;76  obtain- 
ing leave  to  answer;77  moving  to  vacate  or  set  aside  a  judg- 
ment;78 moving  to  strike  papers  from  the  files;70  a  defendant 
appearing  in  court  and  giving  notice  of  appeal;80  pleading 
in  any  manner  in  the  action ; 81  procuring  an  order  requiring 
plaintiff  to  amend  his  petition  and  then  demurring  to  it ; S2  by 
pleading  to  the  merits  of  the  action.83 

It  has  been  held  not  to  be  an  entry  of  appearance  to  deny 
by  motion  the  jurisdiction  of  the  court  on  the  ground  of  the 
insufficiency  of  •process,84  to  appear  for  the  sole  purpose  of 
setting  aside  improper  service,85  to  appear  before  a  justice 
and  moving  for  the  discharge  of  an  attachment  issued  on  the 
ground  of  concealment,  so  that  service  cannot  be  made,86  and 
to  appear  by  answer  denying  the  jurisdiction  of  the  court.87 


Sec.  31.     How  service  of  summons  may  be  set  aside. 

Where  the  service  of  summons  is  defective,  the  party  thus 
defectively  served  may  set  such  service  aside  without  enter- 
ing his  appearance.  He  can  do  this  by  motion  for  that  pur- 
pose and  he  must  aver  in  his  motion  that  he  comes  into  court 
for  the  purpose  of  the  motion  only,  not  intending  in  any  man- 
ner to  enter  his  appearance  in  the  case,  and  for  the  sole  purpose 
of  protesting  against  the  courts  assuming  jurisdiction  over 
his  person,  and  ask  to  set  aside  and  quash  the  summons  in 
the  case  as  to  him.  In  case  a  summons  is  served  on  a  de- 
fendant at  the  wrong  place  he  may  show  this  fact  by  an  affi- 
davit, and  the   service  will  be  set  aside.88 

A  defendant  may  safely  file  such  motion,  but  he  may  not 
ask  more  than  that  the  service  be  set  aside;  for  if  he  does, 
he  will  enter  his  appearance  in  the  action.  In  one  case  where 
the  service  was  defective  on  a  defendant,  he  filed  his  motion 

?6  Godfred  v.  Godfred,  30  0.  S.  53.  to   the    Federal    Courts;    Talman    v. 

"Brundige  v.  Beggs,  25  0.  S.  652.  Baltimore,  45    Fed.   Rep.   15G. 

78  Watson  \.   Paine,  25  O.  S.  340.  84  Whitehead  v.  Post,  3  W.  L.  M. 

?»Maholm   v.  Marshall,   29   0.    S.  195. 

(ill.  85  White    v.    Friese,    2    C.    S,    C. 

so  Fee  v.   Big,  etc.,   13   0.  S.  503.  11.  30. 

si  Evans  v.   [lies,  7  0.  S.  233.  sc  Mawick  v.  Wolf,  3  W.  L.  B.  458. 

82  O'Neal  v.  Blessing,  34  0.  S.  34.  87  Allen  v.  Miller,  11  0.  S.  374. 

83  Kinkead's  Practice,  §  L60,  and  «s  Grady  v.  Gosline,  48  0.  S.  667; 
petitioning  for  the  removal  of  a  case  Smith  v.  Hoover,   39  O.  S.  249. 


25  POWER    TO    TRANSFER    REAL    ESTATE.  §  32 

to  dismiss  the  action  "for  the  reason  that  this  court  has  no 
jurisdiction  of  the  case,  it  appearing  from  the  petition  on 
file  that  said  defendant  is  a  foreign  insurance  company,  and 
that  no  part  of  the  alleged  cause  of  action  arose  in  this 
State"  and  it  was  decided  that  this  was  a  voluntary  ap- 
pearance in  the  action,  and  a  waiver  of  any  defect  in  the 
service  of  the  summons. v9 

In  another  case  the  defendant,  by  motion,  appeared  for 
the  sole  purpose  of  objecting  to  the  jurisdiction  of  the  court 
over  his  person,  and  also  asked  to  have  the  cause  dismissed 
on  the  ground  that  the  court  had  no  jurisdiction  of  the  sub- 
ject matter  of  the  action,  it  was  held  a  voluntary  appear- 
ance.90 

Sec.  32.     How  service  of  the  writ  is  made  on  a  corporation. 

A  summons  against  a  corporation  may  be  served  upon  the 
president,  maj^or,  chairman,  or  president  of  the  board  of  di- 
rectors or  trustees,  or  other  chief  officer;  or,  if  its  chief  offi- 
cer be  not  found  in  the  county,  upon  its  cashier,  treasurer, 
secretary,  clerk,  or  managing  agent;  or,  if  none  of  the  afore- 
said officers  can  be  found,  by  a  copy  left  at  the  office  or  usual 
place  of  business  of  such  corporation,  with  the  person  hav- 
ing charge  thereof;  and  if  such  corporation  is  a  railroad 
company,  whether  foreign  or  created  under  the  laws  of  this 
State,  and  whether  the  charter  thereof  prescribes  the  manner 
and  place,  or  either,  of  service  of  process  thereon,  or,  if  such 
corporation  be  a  street  railroad  company  owrning  or  operat- 
ing a  street  railroad  passing  through  two  or  more  counties, 
or  a  transportation  company  owyning  or  operating  an  electric 
traction  road  located  upon  either  bank  of  any  canal  belonging 
to  the  State,  the  summons  may  be  served  upon  any  regular 
ticket  or  freight  agent  of  such  railroad  company  or  street 
railroad  company  or  transportation  company;  or,  if  there 
be  no  agent,  then  upon  any  conductor  in  .charge  of  any 
train  or  car  upon  such  railroad  or  street  railroad,  or  upon 
any  motorman  or  other  person  in  charge  of  any  electric 
traction  car,  engine  or  motor  upon  any  such  electric  traction 
road,    in   any  county   in    this   State,    in   which   such    railroad, 

89  Handy    v.    Insurance,    37    O.   S.  so  Elliott    v.    Lawhead.    43    O.    S. 

367.  171. 


§33 


MERWINE   ON    REAL    ACTIONS. 


26 


street  railroad,  or  electric  traction  road  is  located,  or  through 
which  it  passes;  but  if  the  defendant  is  an  incorporated  river 
transportation  company,  whether  organized  under  the  laws 
of  this  or  another  State,  the  service  of  a  summons  may  be 
upon  the  master,  or  other  chief  officer,  or  any  of  its  steam- 
boats or  other  craft,  or  upon  any  of  its  authorized  ticket  or 
freight   agents,   at   any  port  where   it  transacts  business.91 

The  question  as  to  what  constitutes  a  managing  agent  with- 
in the  meaning  of  the  above  statute  (Gen'l  Code,  §11288  [R. 
S.  §  5041]  and  Gen'l  Code,  §  11290  [R.  S.  §  5043]),  will  be  dis- 
cussed in  the  following  paragraphs. 

Sec.  33.     What  the  return  of  service  must  show. 

In  order  that  the  service  of  summons  under  this  provision 
of  the  statute  "by  a  copy  left  at  the  office,  or  usual  place 
of  business  of  such  corporation,  with  the  person  having  charge 
thereof"  be  sufficient,  the  return  must,  in  substance,  affirma- 
tively appear,  (1)  that  the  chief  officer  of  the  corporation 
could  not  be  found;  and  (2)  that  none  of  the  specified  offi- 
cers, neither  chief  nor  subordinate,  could  be  found  in  the 
county.92 

The  service  of  summons  upon  a  railway  company,  under 
this  statute,  is  insufficient,  which  recites  that  the  summons 
was  served  upon  a  "ticket  agent  and  general  agent"  of  the  de- 
fendant. This  return  is  defective  because  it  does  not  show 
that  the  person  served  was  a  "regular"  ticket  agent.93 

In  a  proceeding  against  a  defunct  corporation,  the  service 
of  summons  will  be  sufficient,  where  the  return  shows  service 
of  process  upon  the  members  of  its  last  acting  board  of 
directors.94 

In  an  action  against  a  railway  company,  it  will  be  suffi- 
cient   if  the   return   shows  service  to   have   been   made    on   a 


9i  Gen'l  Code,  §11285  (R.  S; 
§  5041 ) .  As  to  the  service  upon  cor- 
porations in  actions  before  a  justice 
of  the  peace,  see  Gen'l  Code,  §  13454 
(R.  S.  §6467);  against  a  railway 
company,  see  Gen'l  Code,  §  10230 
( R.  S.  §  6478)  •,  against  an  insurance 
company,  see  Gen'l  Code,  §  10248 
(R.  S.  §  6479)  ;  against  receivers  of 
a     railway     company     Gen'l     Code, 


§§  9065,  11231,  11233  (R.  S.  §§  3416, 
4988   and    4991). 

92  Fee  v.  Big,  etc..   13   O.   S.  563. 

93  Tallman  v.  Baltimore,  45  Fed. 
Rep.  156.  After  a  cause  has  been 
removed  to  the  Federal  court,  the 
sheriff  will  not  be  permitted  to 
amend  his  return  on  the  summons. 
Ibid. 

9*  Warner  v.  Collender,  20  O.  S. 
190. 


27  POWER   TO   TRANSFER   REAL   ESTATE.  §  34 

regular  ticket  agent  of  such  company.  In  such  case  the  ticket 
agent  need  not  be  employed  on  the  line  of  the  road  to  be 
regarded  as  such.95 

But  if  the  return  of  the  service  of  the  writ  in  an  action 
against  a  foreign  railway  company  shows  that  the  summons 
was  served  upon  a  mere  traveling  solicitor  of  business  for 
such  company,  the  service  is  insufficient  and  will  be  set  aside.96 

A  return  of  service  of  summons  to  the  effect  that  the  writ 
was  served  upon  G,  ''agent  of  said  company,  no  other  officer 
being  found,"   is  not   sufficient.97 

When  a  railway  company  is  in  the  hands  of  a  receiver, 
service  of  the  writ  may  not  be  made  upon  a  ticket  agent 
of  the  company.98 

When  the  return  shows  service  of  summons  upon  a  for- 
eign corporation  by  serving  a  director  personally,  the  service 
is  insufficient.99 

The  following  return  of  service  of  summons  on  a  corpora- 
tion was  held  a  good  service:  "By  delivering  a  true  copy  of 
this  writ  with  all  indorsements  thereon  to  J.H.B.,  secretary 
of  the  company,  no  other  chief  officer  being  found."1 

Where  the  return  in  an  action  against  a  corporation  shows 
the  following,  the  service  is  good:  "I  served  this  writ  on 
the  within  *  *  *  company  by  delivering  a  true  and  certi- 
fied copy  thereof  to  the  treasurer  of  the  company,"  naming 
him,  "the  president  or  other  chief  officer  not  found  in  my 
county."  - 

Sec.  34.     What  is  meant  by  managing  agent. 

A  corporation  sent  a  letter  to  its  counsel  in  which  a  cer- 
tain person  was  designated  as  "our  Cincinnati  agent,"  and 
no  evidence  appeared  showing  that  such  person  had  any  con- 
trol over  any  portion  of  the  company's  affairs,  such  person 
was  not  a  managing  agent  within  the  meaning  of  the  statute.3 

95  Woodcock  v.  Baltimore,  etc.,  46  99  Barney  v.   New  Albany,   etc.,   1 

W.  L.   B.   121    (Federal   Decision  in  Handy,  571. 

Ohio).  i  Cincinnati  v.   Central,   1G   W.   L. 

so  Wilson  v.  Northern,  etc.,  16  W.  B.  375   (Cin.  Sup.  Ct.). 

L.  B.  6    ( Cin.  Sup.  Ct. ) .  2  Parker    v.    Dorn,   etc.,   23    C.    C. 

97  The  Bucket,   etc.   v.  The  Eagle,  444. 

etc.,   21    C.    C.    229.  3  The   Bucket,   etc.   v.   The   Eagle, 

98  Collins    v.    Baltimore,    7    X.    P.       etc.,   21    C.    C.   229. 
270;    see    also   Railroad   v.   Orme,    1 

C.  C.  511. 


§§35,36 


MERWINE    ON    REAL    ACTIONS. 


28 


The  court  in  this  last  case  said  that  the  term  "managing 
agent*'  has  been  defined  to  be  an  agent  having  general  su- 
pervision over  the  affairs  of  a  corporation.4 

Where  an  express  company  had  a  general  "superintendent" 
at  Cleveland.  Ohio,  for  the  State  and  two  or  more  "local 
agents"  in  Madison  County,  Ohio,  one  of  whom  resided  at 
Loudon,  in  said  county,  and  kept  an  office  there,  where  he  received 
and  forwarded  packages  for  the  company,  and  did  all  the 
business  of  the  company  usually  transacted  in  such  receiving 
and  forwarding  offices,  he  is  a  managing  agent  within  the 
meaning  of  Gen'l  Code,  §  11288  (R.  S.  §  5041  ).5 

Service  of  summons  upon  a  general  freight  agent  of  a 
foreign  railway  company  whose  lines  run  into  Ohio  is  a  suffi- 
cient service.6 

If  in  an  action  against  a  foreign  corporation,  the  return  of 
the  writ  shows  service  upon  the  agent  of  the  company,  and 
not  upon  the  managing  agent,  the  service  is  insufficient.7 


Sec.  35.     Service  of  summons  upon  joint  stock  companies. 

A  joint  stock  company  formed  and  residing  in  another 
State,  having  substantially  the  character  and  powers  of  a 
corporation,  should  be  served  with  a  summons  in  this  State 
in  the  same  manner  as  corporations  are  served.  This  is  placed 
upon  the  ground  that  there  is  no  statute  in  Ohio  prescribing 
the  manner  of  service  of  summons  on  such  a  company  and 
such  a  company  has  more  of  the  attributes  of  a  corporation 
than   of  a  co-partnership.8 

Sec.  36.     How  insurance  company  served. 

When  the  defendant  is  an  insurance  company,  and  the 
action  is  brought  in  a  county  in  which  there  is  an  agency 
1  hereof,  the  service  may  be  upon  the  chief  officer  of  such 
agency.9 


1  l"j>per  Mississippi,  etc.  v.  Whit- 
taker,  It;  Wis.  233;  Anderson's  Law 
dictionary. 

r>  The  American,  etc.  v.  Johnson, 
17  0.?.  640;  Railroad  v.  Transpor- 
tation, 32  O.  S.  135.  The  tendency 
of  legislation  and  the  policy  of  the 
law  has  been  to  facilitate  the  ob- 
taining of  service  upon  foreign  cor- 
porations.    Ibid. 


o  Railroad  v.  Transportation,  32 
O.  S.  135.  See  also  Mohr,  etc.  v. 
Insurance   Co.,    12    Fed.    Rep.   474. 

7  The  Fleckmeyer,  etc.  .  v.  The 
Commercial,  etc..  7  X.  P.  613:  see 
in  this  connection  Gibbin  v.  The 
Kanawha,  etc.,  2  C.   S.  C.  R.  75. 

s  Express  Co.  v.  State,  .")•")  0.  S.  69. 

9  Gen'l  Code,  §  11289  (R.  S. 
§  5042 ) .  For  facts  showing  voluntary 


29 


POWER   TO    TRANSFER    REAL    ESTATE. 


;§  37,38 


Where  a  foreign  corporation,  an  insurance  company,  was 
sued  and  the  return  of  the  service  of  summons  showed 
service  upon  "John  P.  Whitman,  agent  of  said  Lomar  Insur- 
ance Company,  and  the  chief  officer  of  its  agency  in  Cincin- 
nati, no  chief  officer  of  said  company  found,"  it  was  held 
sufficient  as  being  upon  a  managing  agent.1" 

Sec.  37.     When  the  service  may  be  had  upon  the  managing 
agent. 

When  the  defendant  is  a  foreign  corporation,  having  a 
managing  agent  in  this  State,  the  service  may  be  upon  such 
agent.11 


Sec.  38.     Service  of  summons  upon  a  minor. 

When  the  defendant  is  a  minor,  the  service  of  summons 
must  be  upon  him,  and  also  upon  his  guardian,  or  the  father, 
or  when  neither  can  be  found,  upon  the  mother,  or  the  person 
having  the  care  of  such  infant,  or  with  whom  he  lives,  and 
the  manner  of  service  shall  be  the  same  as  in  the  case  of  adults, 
and  shall  be  made  on  said  persons  in  the  order  named  herein.12 


appearance  of  an  insurance  compa- 
ny, see  Handy  v.  Insurance  Co.,  3/ 
O.  S.  366.  See  Gen'l  Code,  §9369 
( R.  S.  §  3607 ) ,  for  cases  when 
sheriff  may  mail  service  to  insurance 
company.  See  also  Gen'l  Code  §  9380 
(R.  S.  §3617),  for  provisions  as  to 
appointment  of  agents  upon  whom 
service  of  summons  may  be  made. 
"In  an  action  against  an  insurance 
company  service  may  be  made  on 
the  local  agent  under  Gen'l  Code, 
§  11289  (R.  iS.  §5042),  and  also  on 
the  managing  agents  in  the  State 
under  Gen'l  Code,  §  11290  (R.  S. 
§5043),  although  not  a  resident  of 
the  county.  The  provisions  of  these 
sections  in  that  respect  are  cumula- 
tive." Householder  v.  Kansas,  etc.. 
6  N.  P.  520. 

lOMotir,  etc.  v.  Lomar,  etc.,  7  W. 
L.  B.  341    (Cin.  Sup.  ft.). 

n  Gen'l  Code,  §  11290,  R.  S. 
§  5043. 

For  discussion  of  meaning  of  the 
term  "managing  agent,"  see  §  34. 
Householder    v.    Kansas,    etc.,    6    N. 


P.  520 ;  Mohr,  etc.  v.  Lomar,  etc., 
7  W.  L.  B.  341.  In  United  States 
v.  Telephone  Co.,  50  O.  F.  D.  559,  it 
was  held  that  the  "return  of  a  sub- 
poena stating  that  the  U.  S.  Mar- 
shal had  received  the  writ  and 
served  the  same  upon  the  "Ameri- 
can Bell  Telephone  Company  ( which 
is  a  corporation  doing  business  and 
found  in  the  Southern  District  of 
Ohio),  by  reading  the  same  to  A. 
D.  Bullock,  the  president  of  the 
City  and  Suburban  Telegraph  Com- 
pany (the  said  City  and  Suburban 
Telegraph  Company  being  an  agent 
and  partner  of  the  said  American 
Bell  Telephone  Company,  within 
said  district)."  fails  to  show  affirma- 
tively the  facts  required  to  constitute 
a  valid  service,  either  under  the 
judiciary  acts,  the  rules  of  practice 
governing  the  courts,  or  the  statute 
of  Ohio,  (Gen'l  Code,  §  11290,  R.  S. 
§5043),  providing  for  service  on  a 
managing    agent." 

12  Gen'l     Code,     §11291      (R.     S. 
§5044). 


§39 


MERWINE   ON    REAL    ACTIONS. 


30 


This  provision  of  the  statute  does  away  with  the  old  re- 
quirements as  to  service  of  infants  under  fourteen  years  of  age 
and  those  over  fourteen  years  of  age.  The  service  is  now  the 
same  in  each  case.  And  now  neither  the  caption  of  the  case, 
nor  the  body  of  the  petition,  need  state  the  age  of  the  infant 
for  the  direction  of  the  serving  officer. 

In  the  following  sections  will  be  discussed  the  rights  of 
infants  in  actions  to  which  they  are  parties. 

Sec.  39.     Conduct  of  the  defense  for  and   on  behalf  of  an 
infant. 

In  all  actions  where  no  guardian  has  been  appointed  by 
the  probate  court,  the  defense  of  an  infant  must  be  made  by 
a  guardian  for  the  suit,  who  may  be  appointed  by  the  court 
in  which  the  action  is  prosecuted,  or  by  a  judge  thereof,  or 
by  a  probate  judge.13 

The  court  is  required  by  statute  to  see  to  it  that  a  guardian 
ad  litem  faithfully  discharges  his  duty,  and  the  court  will, 
upon  his  failure  to  do  so,  remove  him  and  appoint  another 
in  his  stead;  and  the  court  has  the  power  to  fix  a  compen- 
sation for  his  services,  to  be  taxed  in  the  cost  against  the 
infant.14 

And  the  answer  of  such  guardian  must  deny  all  the  mate- 
rial allegations  of  such   petition  prejudicial  to   such   infant.15 

The  appointment  may  be  made  upon  the  application  of 
the  infant,  if,  being  of  the  age  of  fourteen  years,  he  apply  within 
twenty  days  after  the  return  of  the  summons,  or  service  by 
publication ;  and  in  case  of  his  being  under  said  age.  or  of 
his  neglect  so  to  apply,  the  appointment  may  be  made  upon 
the  application  of  the  plaintiff,  or  of  a  friend  of  the  infant ; 
but  the  appointment  cannot  be  made  until  after  service  of 
summons,  or  by  publication.1'5 


is  Gen'l  Code,  §  11252  (R.  S. 
§  5003).  See  §  196  (Gen'l  Code, 
§314),  for  appointment  (if  guar- 
dian ad  litem  in  sale  of  an 
entailed  estate.  where  is  cited 
Sherman  v.  Sherman,  2  C.  ('.  N.  S. 
256:  2  Hates'  Pleading,  Practice 
and  Forms,  1577;  Pratt  v  Bates, 
161  Mass.  315;  Ream  v.  Wools,  61 
O.  S.  131. 

14  Gen'l  Code,  §  11250  (R.  S. 
§5001).      It   was   held   in   Worther 


v.  Ruehwein,  8  X.  P.  494,  that  an 
attorney  who  was  appointed  guar- 
dian ad  litem  and  who  rendered 
services  as  attorney  in  such  action, 
was  not  entitled  to  have  such  fees 
for  such  service  as  attorney  taxed 
as  part  of   the   costs   in    the   case. 

is  Gen'l  Code.  §  11322  (R.  S. 
§5074).  See  No.  103  for  form  of 
answer    for  guardian   ad   litem. 

io  Gen'l  Code,  §  11253  (R.  S. 
§5004).     See  No.  102  for  form  for 


31  POWER    TO   TRANSFER   REAL   ESTATE.  §§40,41 

Sec.  40.     The  nature  of  the  duties  of  guardian  ad  litem. 

The  duties  of  a  guardian  ad  litem  are  in  no  wise  like  those 
of  the  guardian  of  the  person  and  estate  of  a  ward  appointed 
by  the  probate  court.  The  guardian  ad  litem  has  nothing  to 
do  with  the  management  of  the  property  involved  in  the  suit 
in  which  he  is  appointed  guardian  ad  litem.  He  has  no  au- 
thority over  the  property  or  the  person  of  the  infant  for 
whom  he  acts.  All  that  a  guardian  ad  litem  does  is  under 
the  control  and  supervision  of  the  court,  having  control  of 
the  case  in  which  he  was  appointed.17 

In  an  action  in  the  probate  court  to  enforce  an  agreement 
for  the  conveyance  of  real  estate  under  the  terms  of  a  will, 
a  guardian  of  a  minor  has  no  authority  to  waive  the  issuing 
and  service  of  summons  on  his  ward,  nor  to  dispense  with 
the  appointment  of  a  guardian  ad  litem  unless  authorized  so 
to  do  by  statute ;  and  a  judgment  against  a  minor  in  a  case 
in  which  he  has  not  had  his  day  in  court,  wTill  be  reversed 
upon  petition  in  error  filed  by  him  within  the  statutory  time 
after  reaching  the  age  of  majority.18 

Sec.  41.  The  defense  of  an  infant  by  guardian  ad  litem 
should  be  a  real  defense. 

Counsel  should  remember  always  that  the  provisions  of  the 
statute  as  to  service  of  summons  upon  an  infant  defendant, 
■and  the  requirements  of  the  law  as  to  the  method  of  pro- 
cedure in  all  cases  in  which  an  infant  is  interested,  are  made 
for  the  protection  of  the  infant.  These  requirements  of  the 
law  are  not  mere  matters  of  form,  to  be  treated  lightly  and 
to  be  considered  as  of  no  importance.  Because  no  one  ap- 
pears for  the  infant,  the  attorney  conducting  the  proceedings 
somehow  conceives  the  notion  that  the  requirement  is  only 
a  matter  of  form;  but  as  it  is  necessary  to  give  good  title 
for  all  real  estate  sold  at  judicial  sale,  a  strict  compliance 
with  the  requirements  of  the  statute  in  all  such  cases  affect- 
ing an  infant    must  be  complied  with. 

The  skillful  examiner  of  title  to  such  real  estate,  and  the 
careful  lawyer  who  conducts  the  action   wherein  the  real  es- 

order  of  court   appointing  guardian  is  Roberts    v.    Roberts.    Gl    0.    S„ 

ad  litem   under  this  statute.  896;    see    also    Gen'l    Code    §  12044 

it  Marsh  v.  Marsh,  4  A.  L.  R.  25  (R.    S.    §5772),    partition   proceed. 

(Cin.    Sup.    Court),      Gen'l    Code,  ings. 

§11253    (R.  S.   §5044). 


§  41  MERWINE   ON    REAL    ACTIONS.  32 

tate  is  sold  by  order  of  court,  is  always  particular  to  see  to 
it  that  the  foregoing  provisions  of  the  law  for  the  protection 
of  the  infant  are  carefully  and  scrupulously  complied  with. 
The  service  of  summons  upon  an  infant,  no  matter  how  young, 
and  also  service  upon  his  guardian,  or  the  father,  or  when 
neither  can  be  found,  upon  the  mother,  or  the  person  having 
the  care  of  the  infant,  and  the  appointment  of  a  guardian 
ad  litem  are  requirements  of  the  statute  which  are  never  at 
any  time,  in  any  action,  to  be  considered  as  mere  formal 
matters;  for  a  suit  cannot  be  prosecuted  against  an  infant 
without  such  service  and  in  certain  instances  without  such 
guardian,  unless  especially  excepted  in  special  statutory  pro- 
ceedings. It  is  the  purpose  of  the  statute  to  secure  for  the 
infant  a  real  and  proper  defense;  and  such  guardian  ad  litem 
lias  not  done  his  duty  by  simply  filing  the  answer  as  required 
by  the  statute.  The  law  demands  that'  he  inquire  of  the  in- 
fant, if  old  enough  to  converse  intelligently,  and  his  friends, 
and  from  all  proper  sources  of  information,  what  the  rights 
of  the  infant  are,  and  he  is  required  to  set  such  rights  before 
the  court  in  a  proper  manner  and  by  proper  evidence  at  the 
hearing  of  the  case.  It  is  the  bounden  duty  of  such  guardian 
ad  litem,  not  only  to  file  his  answer  of  denial,  but  also  to 
protect  the  interests  of  his  ward ;  and  the  court  will  never, 
when  its  attention  is  directed  to  it,  allow  the  guardian 
ad  litem  to  suffer  his  ward  to  be  prejudiced  by  his  omis- 
sions or  laches.  Such  answers  too  frequently  are  filed,  and 
the  proceedings  on  behalf  of  the  infant,  are  conducted  as 
though  the  action,  as  to  the  infant,  were  an  amicable  matter, 
and  in  the  nature  of  an  ex  parte  proceeding,  involving  no 
subject  of  real  controversy.  This  is  a  mistake  and  want  of 
attention  as  to  how  such  matters  should  be  conducted  by  the 
infant  is,  and  has  been,  prolific-  of  useless  litigation,  and  the 
source  of  many  imperfect  real  estate  titles  throughout  the 
State.19 

is  Long  v.  Mulford,  17  O.  S.  503,  ad    litem   for    minor    heirs    alleging 

citing  Dow  v.  Jewell,   1    Foster   (N.  his    ignorance   of   the   matters  con- 

II.  i  isii;  Knickerbocker  v.  DeFrust,  tained  in  the  petition  and  praying 
2  Page,  304;   Sconce  v.  Whitney,  12  that  the  rights  of   his   wards  shall 

III.  150;    Enos  v.  Capps,   12   III.  257.       he    protected,    has    the    effect    of    a 
In    a    proceeding   by    an    adminis-       general    denial    and    requires    proof 

trator  for  the  sale  of  lands  to  pay  of  all  the  material  averments  in 
debts,    the    answer    of    a    guardian       the  administrator's  petition.    Wood 


33 


POWER   TO   TRANSFER   REAL   ESTATE. 


§42 


The  requirements  of  the  law  as  to  the  service  of  a  sum- 
mons upon  infants  are  so  strict,  that  in  one  instance,  where 
the  infant  was  five  or  six  years  old,  the  court  set  aside  a 
decree  long  after  it  was  entered,  authorizing  a  disposition 
of  the  infant's  real  estate,  even  where  a  guardian  ad  litem 
had  been  appointed,  and  had  filed  an  answer  in  the  case  for 
the  infant,  the  infant  not  having  been  served  with  a  sum- 
mons; the  service  of  the  summons  in  the  action,  as  shown  by 
the  return  of  the  writ,  was  by  reading  the  same  to  the  mother 
and  stepfather.-0 

Judge  Rockel,  in  his  excellent  work,  The  Complete  Ohio 
Probate  Practice,  Vol.  I,  Sec.  844,  has  well  said  on  this  sub- 
ject of  the  appointment  and  duties  of  a  guardian  ad  litem: 

"The  matter  of  appointing  a  guardian  ad  litem,  I  fear,  is 
too  often  regarded  as  a  mere  matter  of  form.  Attorneys 
likewise  seem  to  be  imbued  with  the  idea  that  it  is  for  the 
purpose  of  complying  with  a  statutory  provision.  Such  is 
not  its  object.  The  object  and  intent  of  the  statute  is,  that 
such  attorney  should  carefully  investigate  the  rights  of  his 
ward  and  should  look  after  them  with  a  higher  conscientious 
regard  of  his  duty  to  a  client  than  is  required  in  ordinary 
cases.  These  minor  defendants  by  reason  of  want  of  years 
are  unable  to  know  their  rights  or  protect  them.  Attorneys 
who  act  as  such  guardians  ad  litem  should  not  be  affronted 
if  the  courts  in  such  cases  make  direct  inquiry  whether  they 
have  carefully  looked  into  the  infant's  rights." 

Sec.  42.     Rights  of  infants  reserved  in  judgments,  how. 

It  is  not  necessary  to  reserve  in  a  judgment  or  order  the 
right  of  a  minor  to  show  cause  against  it  after  attaining  the 
age  of  majority;  but  in  any  case  in  which,  but  for  this  sec- 
tion such  reservation  would  have  been  proper,  the  minor  may, 


v.  Butler,  23  0.  S.  520.  But  see 
Randall  v.  Turner,  17  0.  S.  262; 
Massie  v.  Donaldson,  8  O.  377. 

A  decree  against  minor  defend- 
ants, rendered  upon  the  answer  of 
their  guardian  ad  litem,  may  be 
impeached,   and   reversed   for   fraud. 

Massie  v.  Matthews,  12  0.  352; 
see  also  on  this  subject  under  the 
old  practice:  Morgan  v.  Burnett, 
18  0.  535;  Lewis  v.  Lewis,  15  O. 
715;  Heirs  v.  Smith,  3  O.  355;  Ben- 


son v.  Cilley,  8  0.  S.  604,  where, 
as  in  most  of  the  old  cases,  it 
was  held  that  in  proceedings  by 
an  administrator  to  sell  real  estate, 
a  guardian  ad  litem  could  enter 
his  ward's  appearance,  and  personal 
service  on  the  ward  in  case  whcrj 
a  guardian  ad  litem  was  appointed, 
was  not  essential. 

Robb  v.  Lessee,   15   O.  689. 

20  Moore  v.  Starks,  1  O.  S.  371. 


§§43-45 


MERWINE   ON    REAL   ACTIONS. 


34 


within  one  year  after  arriving  at  the  age  of  majority,  show 
cause  against  such  order  or  judgment.21 

It  is  also  provided  by  statute  that  the  common  pleas  court 
or  the  circuit  court,  may  vacate  or  modify  its  own  judgment 
or  order,  after  the  term  at  which  the  same  was  made  *  *  * 
For  errors  in  a  judgment,  shown  by  an  infant  within  twelve 
months  after  arriving  at  full  age  as  prescribed  in  section  fifty- 
three  hundred  and  thirty  (Gen'l  Code,  §  11603). 22 

Sec.  43.     Fower  of  a  guardian  to  act  for  ward  in  partition 
proceeding:. 

The  guardian  of  a  minor,  idiot,  imbecile,  or  insane  person 
may,  on  behalf  of  his  ward,  do  and  perform  any  act,  matter 
or  thing,  respecting  the  partition  of  an  estate  which  such 
minor,  idiot,  imbecile,  or  insane  person,  could  do  under  the 
partition  statutes  if  he  were  of  age  and  of  sound  mind ;  and 
he  may  elect  on  behalf  of  such  ward  to  take  the  estate  when 
the  same  can  be  divided  without  injury,  and  make  payment 
therefor  on  behalf  of  such  ward.23 

Sec.  44.     Guardian  ad  litem  in  sale  of  real  estate  by  guardian. 

There  seems  to  have  been  no  provision  made  by  the  statute 
for  the  appointment  of  guardians  ad  litem,  for  infant  defend- 
ants in  actions  brought  by  guardians  of  infants  for  a  sale  of 
his  ward's  real  estate;  but  it  would  be  a  prudent  and  safe 
course  to  have  guardians  ad  litem  for  all  infant  defendants, 
appointed  in  such  cases.24 

Sec.  45.     Guardian  ad  litem — Sale  of  real  estate  by  an  admin- 
istrator to  pay  debts. 

Where  the  prayer  of  the  petition  of  an  administrator  to 
sell  decedent's  real  estate  to  pay  his  debts  is  not  contested, 


2i  Gen'l  Code,  §  11603  (R.  S. 
§5330).  "In  a  suit  by  bill  in 
equity  against  infant  for  the  spe- 
cific performance  of  an  alleged  con- 
tract with  his  ancestor,  he  is  en- 
titled to  a  day  in  court,  after  com- 
ing of  age,  to  show  cause  against 
the   decree,   it   will   be   error." 

Long  v.  Mulford,  17  O.  S.  4-85. 

22  Gen'l  Code,  §  11007  ( R.  S. 
§5354).  For  construction  of  the 
rights  of  an  infant  where  a  case 
in  his  favor  has  been  reversed  and 


remanded,  see  Cary  v.  Kemper,  45 
O.  S.  93. 

23  Gen'l  Code,  §12044  (R.  S. 
§  572  ) .  See  also  Lang  v.  Barnhard, 
(i  \V.  L.  B.  635;  Merrill  v.  Home, 
5  O.  S.  318;  see  No.  260  for  form 
for  answer  of  a  guardian  for  an 
infant. 

2-*  See  Roberts  v.  Page,  61  O.  S. 
06.  Sep  also  Xos.  264  and  265  for 
form  of  appointment  of  guardian 
ad  litem  and  his  answer 


35  POWER   TO   TRANSFER   REAL   ESTATE.  §§46,47 

guardians  ad  litem  for  infant  heirs  or  devisees,  or  other  per- 
sons having  the  next  estate  of  inheritance  from  the  deceased 
who  are  defendants  need  not  be  appointed.  It  is  only  when 
the  prayer  of  such  petition  is  contested  that  such  guardians 
are  appointed.  The  statute  is  explicit  in  saying  that  such 
guardians  ad  litem  when  appointed  in  such  contested  cases, 
shall  not  have  authority  to  waive  notice  or  service  of  sum- 
mons.25 

We  take  it  from  the  command  of  the  statute  that  if  the 
action  at  any  stage  of  the  proceeding  is  contested,  a  guard- 
ian ad  litem  ought  to  be  appointed  to  defend  for  the  infant 
defendants  in  such  actions.26 

Sec.  46.     Service  of  summons  by  publication. 

When  a  defendant,  or  defendants,  cannot  be  served  by  a 
summons  in  the  action  as  provided  by  law,  or  jurisdiction 
over  them  cannot  be  obtained  in  any  of  the  other  methods 
provided  by  law,  the  statute  authorizes  service  upon  him  by 
publication  in  a  newspaper  in  the  county  in  which  the  action 
is  brought.  This  service  by  publication  is  technically  called 
constructive  service.  In  actions  where  the  service  is  con- 
structive, no  personal  judgment  can  be  entered  against  the 
person  served  in  this  way.27 

The  action  can  only  operate  against  the  property  of  the 
defendant  who  has  been  served  by  publication.  The  decree 
of  the  court  cannot  extend  further  than  the  provisions  of 
the  statute,  nor  apply  to  persons  or  actions  other  than  those 
mentioned  in  the  statute. 

Sec.  47.    When  and  in  what  actions  service  by  publication 
may  be  made. 

Service  may  be  had  by  publication  upon  a  defendant  who 
resides  out  of  the  State,  or  his  place  of  residence  cannot  be 
ascertained,  in  an  action:  (1)  for  the  recovery  of  real  estate; 
(2)  for  the  partition  of  real  property;  (3)  for  the  sale  of 
real  property  under  a  mortgage,  lien  or  other  incumbrance 
or  charge;   (4)  to  recover  real  property;   (5)   to  establish  or 

ssGen'l     Code,     §  107S2      (R.     S.  =6  See     Rockel's     Complete     Ohio 

§  6144).   See  also  Ream  v.  Wolls,  61        Probate  Practice,  see  844. 
0.  S.  131.  27  Wood   v.    Stanberry,   21    0.   S. 

142. 


§  47  MERWINE    ON    REAL    ACTIONS.  36 

set  aside  a  will;  (6)  by  an  executor,  administrator,  guardian 
or  other  trustee  against  the  creditors,  legatees,  distributees, 
or  other  parties,  asking  the  direction  or  judgment  of  the 
court  in  any  matter  respecting  the  trust,  estate  or  property 
to  be  administered  as  provided  in  sixty-two  hundred  and  two 
of  the  statute  (Gen'l  Code,  §§10857  and  10858);  (7)  seek- 
ing by  a  provisional  remedy  to  take,  or  appropriate  in 
any  way,  the  property  of  a  defendant,  when  the  defend- 
ant is  a  foreign  corporation;  (8)  relating  to,  or  the  sub- 
ject of  which  is  real  or  personal  property  in  this  State, 
when  a  defendant  has  or  claims  a  lien  thereon,  or  an  actual 
or  contingent  interest  therein,  or  the  relief  demanded  con- 
sists wholly  or  partly  in  excluding  him  from  any  interest 
therein,  and  such  defendant  is  a  foreign  corporation,  a  non- 
resident of  the  State,  or  his  place  of  residence  cannot  be 
ascertained;  (9)  against  executors,  administrators,  or  guard- 
ians, when  the  defendant  has  given  bond  as  such  in  this 
State,  but  at  the  time  of  the  commencement  of  the  action  is 
a  non-resident  of  the  State,  or  his  place  of  residence  cannot 
be  ascertained;  (10)  where  the  defendant,  being  a  resident 
of  this  State,  has  departed  from  the  county  of  his  residence, 
with  intent  to  delay  or  defraud  his  creditors,  or  to  avoid  the 
service  of  summons,  or  keeps  himself  concealed  with  like  in- 
tent ;  (11)  when  a  defendant  in  a  petition  in  error  has  no 
attorney  of  record  in  this  State,  and  is  a  non-resident  of  and 
absent  from  the  same,  or  has  left  the  same  to  avoid  the  serv- 
ice of  summons  in  error,  or  so  conceals  himself  that  such 
process  cannot  be  served  upon  him;  (12)  or  proceeding  under 
Gen'l  Code,  §§  11631-11643  (title  one,  chapter  six,  division  four, 
of  the  Revised  Statutes  §§  5354-5365),  or  to  impeach  a  judgment 
or  order  for  fraud,  or  to  obtain  an  order  of  satisfaction  thereof, 
when  a  defendant  is  a  non-resident  of  the  State. 

Service  may  be  had  by  publication  in  actions  against  a 
coiporation  organized  under  the  laws  of  this  State,  which 
lias  failed  to  elect  officers,  or  to  appoint  an  agent  upon  whom 
service  of  summons  can  be  made  as  provided  by  section  five 
thousand  and  forty-one  (Gen'l  Code,  §11288),  and  which  has 
no  place  of  doing  business  in  this  State. 

When,  in  any  such  case,  the  residence  of  a  defendant  is 
known,  it  must  be  stated  in  the  publication ;  and  immediately 


37 


POWER   TO   TRANSFER    REAL   ESTATE. 


§47 


after  the  first  publication,  the  party  making  the  service  must 
deliver  to  the  clerk  copies  of  the  publication,  with  the  proper 
postage,  and  the  clerk  must  mail  a  copy  to  each  defendant, 
directed  to  his  residence  named  therein,  and  make  an  entry 
thereof  on  the  appearance  docket;  and  in  all  other  cases,  the 
party  who  makes  the  service,  his  agent  or  attorney,  must,  be- 
fore the  hearing,  make  and  file  an  affidavit  that  the  residence 
of  the  defendant  is  unknown,  and  cannot  with  reasonable  dili- 
gence, be  ascertained.28 

The  memorandum  to  be  made  by  the  clerk  on  the  appear- 
ance docket  is  not  conclusive  proof  of  such  fact,  and  if  he  makes 
none,  parol  proof  is  competent.29 

In  order  to  authorize  constructive  service  upon  a  non-resi- 
dent of  the  State  under  paragraph  three  of  section  fifty  forty- 
five  (Gen'l  Code,  §  11292),  such  defendant  must  have  property 
or  debts  owing  to  him  within  the  State,  and  the  relief  sought 
must  consist  in  taking  such  property  or  debts  under  some  of 
the  provisional  remedies  of  the  Code  or  in  appropriating  in 
some  way  such  property  or  debts.30 

And  under  such  paragraph  three,  of  said  section  fifty  forty- 
five,  constructive  service  is  authorized,  where  a  wife  brings 
an  action  against  her  non-resident  husband  for  alimony  and 
support  of  her  child,  when  the  only  relief  she  asks  in  said 
action,  for  said  purpose,  is  the  appropriation  of  real  property 
of  the  husband  situated  in  the  county  where  the  action  is 
brought,  to  the  payment  of  the  amount  that  should  be  al- 
lowed for  such  alimony  and  support.31 

After  the  passage  of  the  act  giving  the  remedy  against 
married  women,  the  same  as  if  she  were  unmarried,  a  mar- 
ried woman  entered  into  a  contract  of  surety  for  her  hus- 
band, in  which  she  alleged  ownership  of  certain  realty  and 
personalty,    and    desiring    to    aid    her    husband,    it    was    held 


28  Gen'l  Code,  §1  12(12  ( R.  S. 
§  5045 ) .  See  No.  53  for  form  of 
affidavit  for  service  by  publication 
in  attachment.  See  No.  283  for 
form  of  service  by  publication  upon 
unknown  heirs.  See  No.  54  for  form 
of  service  by  publication  in  attach- 
ment and   for   proof  of  publication. 

29  English  v.  Moneypenny,  6  C. 
C.   554. 


30  Williams  Admr.  v.  Welton'a 
Admr.,  28   O.   S.  450. 

si  Benner  v.  Benner  63  0.  S.  220. 
The  court  has  power  on  filing  of 
the  petition  to  restrain  defendant 
from  disposing  of  the  property  pend- 
ing the  action.  Ibid.  But  see 
Mussy  v.  Stunnel,  15  C.  C.  439  as 
to  the  proposition  set  forth  in  63 
O.  iS.  220. 


§§48,49  MERWINE   ON   REAL    ACTIONS.  38 

that,  although  the  wife  was  a  non-resident  of  the  State,  the 
written  contract  did  not  afford  adequate  ground  for  service 
upon  her  by  publication.32 

Service  by  publication  may  be  made  by  publication  against 
a  lunatic  defendant,33  and  probably  in  an  action  to  compel 
an  accounting  against  a  non-resident  who  was  a  former  guard- 
ian,34 and  against  a  foreign  dissolved  corporation.35 

In  an  action  against  a  partnership  by  its  firm  name  by 
virtue  of  the  statute  authorizing  such  suits  against  a  firm 
in  such  name,  constructive  service  is  not  allowed.30 

Sec.  48.     Service  by  publication  in  attachment. 

When  a  non-resident  of  this  State  has  property  here,  it 
can  be  taken  in  attachment  in  an  action  for  the  recovery, 
and  jurisdiction  of  such  person  may  be  acquired  by  service 
by   publication.37 

In  actions  where  property  is  attached,  and  summons  re- 
turned "not  served"  no  time  is  fixed  by  statute  within  which 
service  by  publication  can  be  made.38 

If  neither  a  summons  be  issued  nor  any  affidavit  is  filed 
for  service  by  publication  in  an  attachment  case,  the  court 
will  not  obtain  jurisdiction  either  of  the  person  or  property 
of  the  defendant.39 

Sec.  49.     A  finding  of  notice  by  publication  not  subject  to 
collateral  attack. 

The  language  of  our  court  of  last  resort  on  this  subject 
is  this:  Where,  in  an  action  to  foreclose  a  mortgage,  an 
affidavit  in  due  form  to  obtain  service,  by  publication,  is  filed 
and  publication  had,  a  finding  by  the  court  of  common  pleas 
that  the  publication  "is  in  all  respects  regular  and  accord- 
ing to  law,"  and  that  the  defendant  has  been  "duly  served 
with    notice    of    the    pendency    of    said    action,"    is    conclusive 

32  Card,  etc.  v.  Stanage,  50  0.  S.  38  Baclier  v.  Shawhan,  41  0.  S. 
417.  271.     Service  by  publication  can  be 

33  Sturges  v.  Longworth,  1  O.  IS.  made  as  late  as  eight  months  aftei 
544.  the     action     is    begun.       Ibid.       See 

3i  Gilbert  v.  Gilbert,  13  C.  C.  35.  also  Putman  v.   Loeb,   2  C.   C.    110, 

83  Val'.ette  v.  Kentucky,  2  Handy  as  to  effect  of  mistake  in  notice  by 

1.  publication. 

so  Smith  v.  Hoover,  30  O.  S.  340.  so  Larwell  v.  Burke,  10  C.  C.  449; 

37  Bank    v.    Lake    Shore    etc.,    21  Endell  v.  Leibrock,  33   0.  S.  254. 
O.   S.  221. 


39 


POWER   TO   TRANSFER    REAL   ESTATE. 


§§50,51 


against  such  defendant  in  a  collateral  attack,  upon  the  judg- 
ment even  if  he  had  no  actual  notice  of  the  proceeding,  re- 
sided within  the  State  and  might  have  been  personally  served 
with  a  summons,  and  although  it  does  not  appear  of  record 
that  after  the  publication  was  made  and  before  the  hearing, 
an  affidavit  was  filed  stating  that  the  residence  of  such  de- 
fendant was  "unknown  and  cannot  with  reasonable  diligence 
be  ascertained"  as  is  prescribed  by  section  five  thousand  and 
forty-eight,  Revised  Statutes  (Gen'l  Code,  §  11296).40 

Sec.  50.    Affidavit  required  before  publication  is  made. 

Before  service  by  publication  can  be  made,  an  affidavit 
must  be  filed  that  service  of  summons  cannot  be  made  within 
this  State  on  the  defendant  to  be  served  by  publication,  and 
that  the  case  is  one  of  those  mentioned  in  the  preceding  sec- 
tion ;  and  when  such  affidavit  is  filed,  the  party  may  pro- 
ceed to  make  service  by  publication.  And  where  it  is  known 
at  the  time  of  the  filing  of  the  petition  that  the  defendant 
is  a  non-resident,  a  summons  need  not  be  issued  before  pub- 
lication of  the  notice.41 

The  filing  of  the  affidavit  as  required  by  the  statute  is 
jurisdictional.42 

Sec.  51.    How  the  publication  must  be  made. 

The  publication  must  be  made  for  six  consecutive  weeks, 
in  a  newspaper  printed  in  the  county  where  the  petition  is 
filed;  or,  if  there  is  no  newspaper  printed  in  the  county, 
then  in  a  newspaper  printed  in  this  State,  and  of  general 
circulation  in  such  county;  if  it  be  made  in  a  daily  news- 
paper, one  insertion  a  week  shall  be  sufficient;  and  it  must 
contain  a  summary  statement  of  the  object  and  prayer  of 
the  petition,  mention  the  court  wherein  it  is  filed,  and  notify 
the  person  or  persons  thus  to  be  served  when  they  are  re- 
quired   to    answer.43 


40  Winemiller  v.  Laughlin,  51  0. 
S.  421;  Hammond  v.  Davenport, 
16  0.  S.  177;  Fowler  v.  Lessee,  2 
0.  S.  270;  Lessee  v.  City,  18  0. 
323.  But  such  finding  will  not  be 
conclusive  on  a  bill  of  review. 
Trumble  v.  Lonorworth.  13  0.  S.  431. 

*i  Smith  v.  Whittlesay,  19  C.  C. 
415:  Gen'l  Code,  §11203  ( R.  S. 
§5046).      See    No.    53    for   form    of 


the  affidavit.  The  filing  of  this 
affidavit  is  jurisdictional  for  service 
by  publication  in  attachment  pro- 
ceedings against  a  non-resident. 
Larwell   v.   Burke,    10   C.  C.  440. 

42  Endel  v.  Leibrock,  33  O.  S.  260; 
Whitehead  v.  Post.  3  W.  L.  M.  105. 

43  Gen'l  Code,  §11205  (R.  S. 
§  5047 ) .  See  No.  54  for  form  for 
the  affidavit  in  proof  of  publication. 


§  52  MERWINE   ON    REAL    ACTIONS.  40 

Where  the  party  is  incorrectly  named  in  the  notice  but 
the  remaining  part  of  the  notice  is  of  such  a  nature  and 
character  as  to  correctly  indicate  the  party  and  property 
intended  to  be  affected  by  the  notice,  the  error  is  imma- 
terial.44 

The  notice  requires  in  foreclosure  proceeding  that  it  con- 
tain a  description  of  the  property  foreclosed.  This  is  placed 
upon  the  ground  that  the  non-resident  defendant  is  more 
likely  to  get  the  notice.45 

In  a  suit  to  vacate  a  judgment,  the  affidavit  and  the  pub- 
lished notice  must  identify  the  judgment  to   be  vacated.46 

However,  when  lands  are  attached,  the  attachment  will  not 
be  void  because  the  published  notice  failed  to  give  a  descrip- 
tion of  the  property  attached.47 

The  publication  of  the  required  notice  the  number  of  times 
designated  by  the  statute,  and  other  times  additional,  does 
not  invalidate  the  notice.48 

Sec.  52.    When  the  service  by  publication  is  complete. 

Service  by  publication  will  be  deemed  complete  at  the  date 
of  the  last  publication,  when  made  in  the  manner  and  for 
the  time  prescribed  in  section  five  thousand  and  forty-seven  of 
the  statute  (Gen'l  Code,  §  11295)  ;  and  such  service  must  be 
proved  by  affidavit.49 

In  an  attachment  suit  against  a  non-resident  defendant, 
the  notice  was  first  published  on  November  8,  in  a  weekly 
newspaper.  It  appeared  in  each  successive  weekly  issue  of 
the  paper  until  December  13,  the  last  publication  being  in 
the  paper  of  that  day  which  was  Friday.  The  service  was 
complete  on  that  day.50 

44  Buchanan  v.  Roy,  2  0.  S.  251;  etc.,  2  C.  0.  110.  A  seizure  of  prop- 
Lessee  v.  Whitman,  2  O.  S.  270;  erty  under  a  writ  tliat  is  void,  will 
C-ary    v.    May.    l(i    ().    (iti.  not    authorize    constructive    service. 

4s  Lawler  v.  Wbeets,  1  Handy  40.  Endel  v.  Leibrock,  33  O.  S.  254. 

46  Whitehead  v.  Post,  3  \V.  L.  M.  «  Kinkead's   Practice.   §154. 

105.  4!)  Kay     v.     Watson,     17     0.     27; 

47  Core  v.  Oil,  etc.,  40  O.  S.  030.  Cien'l  Code,  §11296  (R.  S.  §5048). 
A  mistake  in  a  notice  by  publication  See  No.  54  for  form  of  affidavit  in 
does  not  vitiate  an  attachment  prop-  proof    of    publication. 

erly  i::sued.     Putnam,  etc.,  v.   Loeb,  6»  Core  v.   Oil,  etc.,  40   O.  S.  036. 


41 


POWER   TO   TRANSFER   REAL    ESTATE. 


§§  53-55 


Sec.  53.     When  service  of  copy  of  petition  may  be  made  out 
of  the  State. 

When  service  may  be  made  by  publication,  personal  ser- 
vice of  a  copy  of  the  summons  and  petition  may  be  made 
out  of  the  State ;  and  such  service  must  be  proved  by  affi- 
davit.51 

When  service  is  made  in  this  manner,  the  officer  verifying 
the  oath  must  be  such  a  person  as  is  authorized  in  this  State 
to  take  a  deposition.52 

A  suit  for  specific  performance  of  real  estate  situated  out 
of  this  State  is  not  such  a  suit  as  will  authorize  service  of 
a  non-resident  defendant  as  provided  in  section  fifty  forty-nine 
of  the  statute  (Gen'l  Code,  §  11297). Bs 

Nor  will  an  action  for  a  money  judgment  to  be  enforced 
by  execution  be  such  a  suit  as  will  authorize  personal  service 
of  a  defendant  out  of  the  State.54 

Sec.  54.     How  publication  made  against  an  unknown  heir. 

When  an  heir  or  a  devisee  of  a  deceased  person  is  a  nec- 
essary party,  and  it  appears  by  affidavit  that  his  name  and 
residence  are  unknown  to  the  plaintiff,  proceedings  against 
him  may  be  had  without  naming  him ;  and  the  court,  or  a 
judge  thereof,  must  make  an  order  respecting  the  publica- 
tion of  notice,  but  the  order  shall  require  not  less  than  six 
weeks'  publication.55 

Sec.  55.     Manner  of  service  where  two  or  more  defendants 
are  jointly  liable. 

When  service  has  been  made  on  one  or  more  defendants, 
but  not  on   all.  the   plaintiff  may  proceed   as   follows: 


si  Gen'l  Code,  §11207  ( R.  S. 
§504!)). 

•"•2  Fitch  v.  Campan,  31   0.  S.  64G. 

•r>3  Penn  v.  Haywood,  14  0.  S.  302. 

s*  Williams  v.  Welton,  28  0.  S. 
451. 

bo  Gen'l  Code.  §11208  (Pv.  S. 
§5050).  Sullivan  v.  Weaver,  10  O. 
275.  See  No.  283  for  form  of  the 
affidavit.  See  also  No.  284  for  form 
of   legal    notice.      A    finding   of   the 


court  that  unknown  heirs  had  heen 
notified  by  the  publication  of  notice 
in  a  newspaper  named,  for  a  period 
specified,  is,  in  effect,  equivalent  to 
a  notice  given  in  pursuance  of  the 
previous  direction  of  the  court;  at 
least  it  ought  to  be  so  regarded 
when  questioned  in  a  collateral  pro- 
ceeding. Rhodes  v.  Gunn,  35  O.  S. 
387. 


§§56,57 


MERWINE   ON    REAL    ACTIONS. 


42 


1.  If  the  action  is  against  defendants  jointly  indebted  upon 
contract,  he  may  proceed  against  the  defendants  served,  un- 
less the  court  otherwise  direct. 

2.  If  the  action  is  against  defendants  severally  liable,  he 
may,  without  prejudice  to  his  rights  against  those  not  served, 
proceed  against  the  defendants  served.50 

When  part  only  of  the  defendants  have  been  served  by 
summons,  and  a  judgment  is  taken  against  all,  the  judgment 
is  erroneous  and  voidable  but  not  void.57 

Sec.  56.    Lis  pendens. 

When  the  summons  has  been  served  or  the  publication 
made,  the  action  is  pending  so  as  to  charge  third  persons 
with  notice  of  its  pendency ;  and  while  pending,  no  interest 
can  be  acquired  by  third  persons  in  the  subject  of  the  action, 
as  against  the  plaintiff's  title.  Space  forbids  further  discus- 
sion of  this  subject.  In  the  note  below  will  be  found  the 
cases   on  this  topic.58 

Sec.  57.    Lis  pendens  as  to  suits  in  other  counties. 

When  any  part  of  real  propert.y,  the  subject  matter  of  an 
action,  is  situated  in  any  county  or  counties  other  than  the 
one  in  which  the  action  is  brought,  a  certified  copy  of  the 
judgment  in  such  action  must  be  recorded  in  the  recorder's 
office  of  such  other  county  or  counties,  before  it  shall  operate 


3«Gen'l     Code,     §11209     (It.     S. 
§5051). 

57  Douglass  v.  Massie,  16  O.  271. 
See   on   this   subject   the  following: 
Moore    v.    Robinson,    0    O.    S.    302; 
Sidener    v.    Hawes,    37    0.    S.    532; 
Newberg    v.   Munshower,   20    0.    S. 
617.      See    also    under    this    subject 
Larrimer  v.  Clemmer,  31  O.  S.  400 
Aucker    v.    Adams,    23    0.    S.    543 
Bazell    v.    Belcher,    31    0.    S.    572 
Yoho  v.  MeGovern,  42  0.  S.  11. 

BSGen'l  Code,  §  11300  (R. 
§5052).  Stout  v.  Lye,  103  U 
66:    Omwake    v.   Jackson,    15    C 


615 

272 
523 


Bocher  v. 
Collier   v. 


Shawan,   41    0. 
Beckley,    33    0. 


S. 

c. 

s. 
s. 


Fox  v.  Reeder,  28  0.  S.   181; 


Brisbane  v.  Stoughton,  17  0.  482; 
Irvin  v.  Smith,  17  0.  243;  Ludlow 
v.  Kidd,  3  0.  541;  Turner  v.  Cre- 
bill,  1  O.  372;  Smiley  v.  Dewey, 
17  0.  156;  Porter  v.  Barclay,  18 
O.  S.  546;  Union,  etc.  v.  Union,  etc., 
6  0.  S.  254;  Clark  v.  Strong,  16 
0.  317;  Tollerton  v.  Williard,  30 
0.  S.  570;  Fletcher  v.  Fletcher,  15 
C.  C.  273;  Brundage  v.  Beggs,  25 
O.  S.  652;  Barry  v.  Hovey,  30  O. 
S.  344;  Stoddard  v.  Meyers,  8  0. 
203;  Gibbon  v.  Dougherty,  10  O. 
S.  365;  Hamlin  v.  Bevans,  7  O. 
(pt.  I)  161;  Gunbler  v.  Tremble, 
14  0.  323;  Howe  v.  Hartness,  11 
0.  S.  440;  Bennett  v.  Williams,  5 
0.  461. 


43  POWER   TO   TRANSFER    REAL    ESTATE.  §  57 

therein  as  notice  so  as  to  charge  third  persons,  as  provided 
in  the  preceding  °ection ;  but  it  shall  operate  as  such  notice, 
without  record,  the  county  where  it  is  rendered;  but  this 
section  shall  not  apply  to  actions  or  proceedings  under  aay 
statute  which  does  not  require  such  record.59 

saGen'l     Code,     §11301      (R.     S.       to    a   judgment   in   Federal    Courts. 
§5053).      Benton   v.    Shafer,   47    0.       Stewart  v.  Railway,  53  0.  S.  151. 
S.   117;    this  statute  not  applicable 


CHAPTER  II. 

THE  LAW  AND   PROCEDURE   IN   SALE   OF  REAL  ES- 
TATE UNDER  JUDGMENTS,   ORDERS  OF  SALE 
AND  EXECUTIONS. 


SECTION. 

58.  What  is  a  judgment  and  what 

an  order. 

59.  The    judgment    must    be    con- 

fined to  the  issues. 

60.  Judgments    without    jurisdic- 

tion of  parties  or  subject 
matter,  is  void. 

61.  Judgments  cannot  be  collater- 

ally attacked. 

62.  A    judgment    of   the   court    as 

between  the  parties  is  final. 

63.  The  effect  of  court's  finding  of 

facts  giving  it  power  to  enter 
judgment. 

64.  Effect 'of  a   voidable   and  void 

judgment. 

65.  The    rule    caveat    emptor    ap- 

plies to  purchasers  at  judi- 
cial   sale. 

66.  Effect  of  sales  made  under  a 

void  and  voidable  judgment 
and   decree. 

67.  Purchasers     at     judicial     sale 

protected  by  the  recording 
statute. 

68.  .Judgments     may    be    vacated 

during   the  term,   when. 

69.  Judgments     may     be    vacated 

after  term.  when. 

70.  Effect  on  purchaser's  title  at 

judicial  sale  when  judgment 
or  decree  reversed  and  set 
aside. 

71.  Remedy    of    purchase    at    sal*- 

on  execution,  if  the  Bale  is 
invalid. 

72.  Not  nee  'ssary  to  reserve  rights 

of  infants  in  a  judgment  to 
be  entered  against  them. 


SECTION. 

73.  Bona   fide    purchaser    not    af- 

fected by  the  preceding  sec- 
tion. 

74.  Manner    in    which   a    dormant 

judgment  may  be  revived. 

75.  The .  limitation   as   to   revivor 

of   judgment. 

76.  New  parties  to  judgment  and 

revivor  of  judgment  when  a 
party  dies;  judgment  in  cir- 
cuit court  remanded  to  com- 
mon pleas  for  execution; 
how  revived   after  death. 

77.  Judgments      against      parties, 

and     against     defendants     at 
different  times. 

78.  A  judgment  will  operate  as  a 

conveyance  when. 

79.  How  judgment  entered  against 

a  married  woman. 

80.  All    judgments    must    be    en- 

tered by  clerk  in  conformity 
to   verdict. 

81.  When  the  court  to  order  what 

judgment  to  be  entered  on 
verdict. 

82.  When    judgment    may    be    en- 

tered against  the  verdict. 

83.  All    judgments    must    be    en- 

tered  in   the   journal. 

84.  Complete  record  of  case  to  be 

made,    unless    waived. 

85.  When    record    is    t:>    be   made 

and  Bigned. 

86.  Of    what    the    complete    record 

shall  consist. 

87.  Court    t<>    cause    record    to   be 

completed  in  certain  cases. 


44 


45 


KEAL    ESTATE    UNDER    JUDGMENTS. 


SECTION. 

88.  What    index    is    required    for 

judgments. 

89.  The  precipe  for  an  execution. 

90.  The     execution ;     nature     and 

kinds  thereof. 

91.  The  kinds  of  executions. 

92.  What  property  subject  to  levy 

and   sale. 

93.  Partnership     property     levied 

on,  how. 

94.  When  liens  of  a  judgment  at- 

tach to  lands. 

95.  Lien  of  judgment  of  supreme 

court;  lien  of  judgment  of 
the  common  pleas  court  in 
cases  removed  to  supreme 
court. 

96.  Lien  of  transcripts  of  justices 

and  mayors  by  filing  of 
transcripts  with  the  clerk  of 
the  court  of  common  pleas. 

97.  The  lien  of  such  judgment. 

98.  Executions    upon     transcripts 

of  judgments  of  justices 
filed  by  the  clerk  of  the 
courts  of  common  pleas,  and 
sales   thereunder. 

99.  When    a    judgment    execution 

becomes  dormant  and  ceases 
to  be  a  lien. 

100.  The    writ    of    execution;     its 

command,  and  how  sales 
made  thereunder.  Execution 
operates  against  a  partner- 
ship, how. 

101.  In    what   cases    no   preference 

given  to  execution. 

102.  Goods  and  chattels  to  be  first 

taken;  for  want  thereof, 
lands  to  be  levied  upon. 

103.  Lands   must    be   appraised    by 

freeholders   before    sale. 

104.  Appraisers     cannot     be     pur- 

chasers. 

105.  The     appraisement     must     be 

made  upon  actual  view. 

106.  Parol  evidence  may  be  intro- 

duced to  show  mistake  in 
an  appraisement  and  the  ap- 
praisement may  be  set  aside, 
when. 

107.  What  must  be  included  in  the 

appraisement. 


SECTION. 

108.  When  real  estate  may  be  sold 

without  valuation. 

109.  The    lien    of    a    judgment    re- 

stricted to  two-thirds  of  the 
appraised  value  of  the  lands 
levied  on. 

110.  Lands  cannot  be  sold  for  less 

than  two-thirds  of  the  ap- 
praisement; except  as  to  en- 
forcement of  a  junior  lien; 
court  may  determine  mini- 
mum amount  for  which  real 
estate  may  be  sold. 

111.  Persons  occupying  trust  rela- 

tions cannot  bid  at  their  own 
sales. 

112.  Purchasers  making  unsatisfac- 

tory bid,,  to  pay  additional 
sum  to  satisfy  costs  and  al- 
lowances. 

113.  Requirement  as   to   advertise- 

ment of  salo  of  land  under 
order  of  court.  Requirement 
as  to  description  or  location 
of   property. 

114.  Requirements    as    to    publica- 

tion of  sale  of  real  estate. 

115.  Publication   of  notice  of   sale 

in  newspapers  other  than 
those  printed  in  the  English 
language. 

116.  The    return    of    the    writ    by 

the  sheriff  and  the  record 
thereof. 

117.  Purchaser      failing     to      pay, 

punished  for  contempt. 

118.  Confirmation    of  "sale;     order 

for  deed;  officer  may  retain 
purchase  money  until  sale 
confirmed. 

119.  Right  of  judgment   debtor   to 

redeem  at  any  time  prior  to 
confirmation. 

120.  When      master     commissioner 

may  convey  real  estate. 

121.  When  slier  ill'  may  act  as  and 

for  master  commissioner. 

122.  The  recitals  required  in  a  deed 

of  a  sheriff  or  master  com- 
missioner. 

123.  The  effect  of  a  deed  made  by 

a  sheriff  or  master  commis- 
sioner. 


§58 


MERWINE   ON    REAL   ACTIONS. 


46 


SECTION. 

124.  Printer's  fee  for  publication  of 

sale  may  be  required  in  ad- 
vance. 

125.  Where  sales  of  real  estate  are 

required  to  take  place;  alias 
execution  against  lands,  is- 
sued, when. 

126.  Proceedings     when     creditors 

direct  separate  levies  to  be 
made  on  separate  parcels  of 
land. 

127.  Successor  of  sheriff  may  make 

deeds  for  lands  sold  by 
predecessor. 

128.  Rights   of   party,   when   prop- 

erty not  subject  to  execution 
is  sold. 

129.  Relief  of  officer  who  levies  up- 

on and  sells  wrong  property 
in  good  faith. 

130.  Remedy  when  one   of  tha   co- 

sureties pays  for  such  prop- 
erty. 

131.  When  judgment  looses  prefer- 

ence as  a  lien.  Lien  of  su- 
preme and  circuit  court 
judgments.  How  long  to 
continue. 


SECTION. 

132.  When    new    appraisement    for 

sale  of  real  estate  on  execu- 
tion may  be   made. 

133.  New  appraisement  and  terms 

of  sale  of  mortgaged  prem- 
ises. 

134.  When     execution     to     be     re- 

turned. 

135.  How  judgment  against  princi- 

pal and  surety  entered.     Ex- 
ecution in  such  case. 

136.  Fee  of  appraisers   of  real  es- 

tate;  penalty  for  neglecting 
to  serve  as   an   appraiser. 

137.  Execution    may    issue    to    an- 

other   county    and    may    be 
returned  by  mail. 

138.  The     execution      docket     and 

what  it  should  contain;   the 
index   thereto. 

139.  Proceedings     when     order     of 

sale    issued   in  case    not   on 
trial  docket. 

140.  Failure  of  sheriff  to   perform 

duties    required    in    connec- 
tion with  sale  of  real  estate. 


Sec.  58.     What  is  a  judgment  and  what  an  order. 

A  judgment  is  the  final  determination  of  the  rights  of  the 
parties  in  an  action,  and  a  direction  of  a  court  or  judge 
made  and  entered  in  writing  and  not  included  in  a  judgment 
is  an  order.1 

This  statutory  definition  of  a  judgment  has  been  held  to 
be  broad  enough  to  comprise  all  final  judgments  and  all  final 
decrees.2 


iGen'l  Code,  §11582  (R.  S. 
§5310). 

''As  in  logic,  judgment  is  an  af- 
firmation of  a  relation  between  a 
particular  predicate  and  a  particu- 
lar subject,  so,  in  law,  it  is  the 
affirmation  by  the  law  of  the  legal 
consequences  attending  a  proved  or 
admitted  state  of  facts."  Black  on 
Judgments,    §  1. 

"A  judgment  is  the  final  consid- 
eration    and     determination     of     a 


court  of  competent  jurisdiction  in 
the  matter  submitted  to  it."  Ibid. 
Whitwell  v.  Emory,  3  Mich.  84. 

"It  is  the  decision  or  sentence  of 
the  law  given  by  a  court  of  jus- 
tice or  other  competent  tribunal  as 
a  result  of  proceedings  instituted 
•therein  for  the  redress  of  an  in- 
jury." Bouv.  Law  Die.  See  Tidd's 
Practice,  930;  Mahonings  Bank's 
Appeal,  32  Pa.  St.   160. 

2  Conrad  v.  Everich,  50  0.  S.  480. 


47 


REAL   ESTATE    UNDER    JUDGMENTS. 


§58 


The  common  law  definition  of  a  judgment  is,  the  decision 
or  sentence  of  the  law  pronounced  by  the  court  or  other 
competent  tribunal  upon  the  matter  contained  in  the  record  3 

At  common  law  an  oral  opinion  of  a  judgment  announced 
by  a  court  in  a  case  before  it  was  a  good  judgment,  and 
an  execution  could  be  issued  upon  it.  Under  the  code  and 
under  the  practice  in  Ohio,  a  judgment  carries  with  it  no  force 
until  it  is  recorded.  An  oral  judgment  or  decision  of  the 
court  is  completely  under  the  control  of  its  judge  or  judges 
until  the  final  decree  is  entered  of  record.4 

A  decree,  as  defined  by  Judge  Black,5  is  the  determina- 
tion, sentence  or  judgment  of  equity  pronounced  by  a  com- 
petent court  upon  a  controversy  submitted  for  its  decision. 

The  chief  points  of  difference  between  a  judgment  and 
decree  are  these:  A  judgment  in  contested  cases  follows  the 
finding  of  a  verdict;  the  decree  is  the  decision  of  a  judge 
in  an  equity  case  passing  on  all  of  the  questions  raised;  a 
judgment  does  not  compel  anything  but  the  payment  of 
money,  and  this  only  by  the  sale  of  the  debtor's  property; 
a  decree  may  enforce  the  doing  of.  acts  other  than  the  pay- 
ment of  money,  and  be  enforced  by  punishment  for  contempt 
of  court;  an  execution  may  issue  upon  a  judgment,  and  on 
a  decree  only  to  enforce  an  order  of  sale ;  a  judgment  cannot 
meet  all  the  exigencies  of  litigation;  a  decree  may  do  this 
in  so  far  as  it  is  within  the  power  of  the  courts  to  enforce 
anything. 

An  order  is,  "A  decision  made  during  the  progress  of  the 
case  either  prior  or  subsequent  to  final  judgment  settling 
some  point  of  practice  or  some  question  collateral  to  the 
main   issue  presented  by  the  pleadings  and  necessary  to  be 


3  Wiley  v.  Lewis,  4  X.  P.  212; 
Freeman  on  Judgments,   §  2. 

^  Wiley  v.  Lewis,  4  X.  P.  212; 
but  see  Coe  v.  Erb,  59  0.  S.  259. 
As  to  the  time  and  manner  of  en- 
tering judgments  by  the  clerk,  see 
Gen'l  Code,  §  11599*  (R.  S.  §5326). 
As  to  the  manner  in  which  judg- 
ments may  be  vacated  during  the 
term,  see  Gen'l  Code,  §  11575  (R. 
S.  §5305),  and  after  the  term, 
Gen'l  Code,   §11631    (R.  S.  §5354). 

It   might   be    said   here   that   the 


judgment  announced  by  the  court, 
before  it  can  be  made  a  lien  upon 
real  estate,  must  be  recorded. 
There  may  be  a  different  rule  as 
to  the  validity  and  effect  of  an  oral 
decision  of  the  court  not  entered 
on  the  journal.  As  we  are  con- 
cerned only  with  the  judgments 
which  are  a  lien  upon  real  estate, 
and  which  may  eventually  pass 
into  a  sale  thereof,  we  do  not  fur- 
ther investigate  this  subject. 
5  Black  on  Judgments,  §  1. 


§  59  MERWINE   ON   REAL    ACTIONS.  48 

disposed  of  before  such  issue  can  be  passed  on  by  the  court, 
or  necessary  to  be  determined  in  carrying  the  execution  into 
effect."6 

An  order  must  be  in  writing  before  it  will  carry  with  it 
any  legal  sanction.7 

Judgments  are  either  final  or  interlocutory.  The  statute 
defines  a  final  order  to  be,  "An  order  affecting  a  substan- 
tial right  in  an  action,  when  such  order  in  effect  determines 
the  action  and  prevents  the  judgment,  and  an  order  affect- 
ing a  substantial  right  made  in  a  special  proceeding  or  upon 
a   summary   application   in   an   action   after   judgment."8 

All  other  orders  made  during  the  litigation  of  any  case, 
and  before  the  final  hearing  on  its  merits,  are  interlocutory 
orders.9 

Sec.  59.     The  judgment  must  be  confined  to  the  issues. 

The  examiner  of  title  to  real  estate,  sold  under  a  judicial 
decree,  must  look  carefully  to  the  pleadings  in  the  case  un- 
der consideration.  He  must  be  sure  that  the  petition,  if  filed 
under  a  statute  authorizing  a  sale,  states  a  good  cause  of 
action  ;  for  should  the  petition  fail  to  state  any  of  the  statu- 
tory requirements,  the  authority  of  the  court  will  avail  noth- 
ing toward  giving  the  purchaser  title.  Again,  the  court  can 
pass  on  the  issues  raised  by  the  pleadings  only,  for  should 
the  court  go  outside  of  the  issues  of  the  case,  and  determine 
some  question  not  raised  in  them,  the  decision  will  carry  with 
it  no  power  for  its  enforcement.  Even  a  judgment  of  a  court 
upon  a  subject  of  litigation  within  its  jurisdiction,  but  not 
brought  before  it  by  any  statement  or  claim  of  the  parties,  is 
null  and  void,  and  may  be  collaterally  impeached.10 

Jurisdiction  is  the  right  to  adjudicate  concerning  the  subject 
matter  of  a  given  case.  To  constitute  this  there  are  three  essen- 
tials :     (a)   The   court   must  have   cognizance   of   the    class    of 

G  Loring    v.     Illesey,     1     Cal.    27;  27    form    for    decree    and    order    of 

Black  on  Judgments,  S  1.  sale. 

TWinton    v.   Cornish,   5   0.   477.  i"  Spoors   v.   Coen,   44   0.  S.   497; 

sGen'l      Code,      §12258      ( R.    S.  Porterfield  v.  Butler,  47  Miss.   150; 

S(i707).  12    Am.    Rep.     329;     Armstrong    v. 

sKinkead's        Practice,         S945;  Barton,  42  Miss.  50G;    Still  v.  Pal- 

Freeman    on    Judgments,    §29.     Sec  mer,   41    Miss.    89;    Black   on   Judg- 

No.  3  form  for  judgment,  and  No.  ments,  §  184;  Freeman  on  Judg- 
ments, §  135  a. 


■49  REAL    ESTATE    UNDEli    JUDGMENTS.  §  60 

cases  to  which  the  one  to  be  adjudged  belongs.  (b)  The 
proper  parties  must  be  present,  (c)  The  point  decided  must 
be  in  substance  and  effect,  within  the  issue.  That  a  court 
cannot  go  out  of  its  appointed  sphere,  and  that  its  action  is 
void  with  respect  to  persons  who  are  strangers  to  its  pro- 
ceedings, are  propositions  established  by  a  multitude  of  au- 
thorities.11 

The  issues  must  state  a  cause  of  action  and  the  judgment 
cannot  go  outside  of  the  issues  made  up  by  the  pleadings 
and  undertake  to  decide  matters  not  brought  into  the  ease, 
but  this  rule  is  not  so  strict  as  to  require  the  petition,  or 
cross-petition,  as  the  case  may  be,  to  be  so  perfect  in  the 
form  and  substance  as  to  withstand  a  demurrer  interposed 
against  it.12 


"•o* 


Sec.  60.     Judgments  without  jurisdiction  of  parties  or  subject 
matter,  is  void. 

In  the  examination  of  title  to  real  estate,  sold  under  judi- 
cial decree,  one  of  the  most  important  inquiries  is,  has  every 
one  who  had  an  interest  in  the  property,  at  the  time  the  suit 
was  begun,  been  brought  into  the  case,  and  if  so,  did  the 
court  make  the  proper  orders  necessary  to  divest  him  of  his 
title  thereto?  It  is  elementary  that  everyone  must  have  his  day 
in  court.  A  court  has  no  power  to  pass  upon  anyone's  property 
rights  without  giving  him  a  chance  to  be  heard.13 

Any  order  made  as  to  the  rights  of  anyone  to  real  estate 
sought  to  be  sold  by  the  court,  though  made  a  party  defend- 
ant, who  has  not  been  served  with  a  summons,  or  has  not 
entered  his  appearance  in  some  of  the  methods  pointed  out 
by  law,14  is  void  as  to  such  party,  and  he  can  assert  his 
rights,  at  any  time,  in  any  manner,  unless  barred  by  limi- 
tation of  time.  Counsel  conducting  any  proceeding  in  which 
real  estate  is  sold,  should  use  the  utmost  diligence  in  search- 

11  By  the  court  in  Munday  v.  IS  It  is  an  elementary  principle 
Vail,  43  X.  J.  L.  418;  Strobe  v.  that  no  man's  rights  should  be  ad- 
Downer,  13  Wis.  11;  Black  on  judged  until  he  has  had  his  day  in 
Judgments,  §  184;  Koelsch  v.  court,  and  has  had  an  opportunity 
Mixer,  52  O.  S.  207 ;  Southward  v.  to  be  heard.  Trimble  v.  Long- 
Jameson,  66  0.   S.  311.  worth,  13  O.  S.  438. 

12  Kinkead's  Practice,  §807;  "See  Sections  5  to  39  inclusive, 
Buchanan    v.    Roy,    2    O.    S.    252;  supra. 

Shauwkin  v.   Street,   16   O.  5.  1. 


§60 


MERWINE   ON    REAL    ACTIONS. 


50 


ing  the  records  of  the  title  to  the  real  estate  sought  to  be 
sold  to  secure  the  names  of  every  lienholder,  whether  by 
mortgage,  judgment,  mechanic's  lien  of  any  kind,  whether  by 
attachment,  foreign  execution,  vendor,  and  everyone  claim- 
ing any  interest  in  the  title  thereto,  and  every  such  person 
holding  such  claim,  lien  or  interest  in  the  title  thereto,  should 
be  made  a  party  defendant,  and  required  to  set  forth  such 
lien  or  interest.  The  petition  should  ask  that  they  do  this 
upon  penalty  of  having  their  lien  or  interest  in  the  real  es- 
tate barred  by  order  of  the  court.  If  the  lien  or  interest  of 
any  such  claimant  be  invalid,  the  petition  in  such  case  should 
so  allege,  else  such  interest,  in  case  of  a  default  to  answer, 
would  be  a  cloud  upon  the  title  and  would  frighten  away 
purchasers  at  the  sale.13 

After  such  persons  who  hold  any  interest  of  record  (and 
not  of  record,  if  plaintiff  has  had  notice  of  their  interest) 
have  been  made  parties  to  the  action,  the  practitioner  then 
must  have  each  of  them  served  in  the  manner  pointed  out 
by  law,  and  the  record  should  show  the  manner  of  service. 
Great  care  should  be  exercised  in  respect  of  the  rights  of 
infants,  or  insane  or  other  defendants  under  guardianship. 
Service  of  summons  upon  them  should  be  made  as  required 
by  the  statute.16 

As  to  them,  if  the  statute  has  not  been  followed,  their 
rights  remain  in  the  real  estate  unaffected  by  any  order  of 
the  court  and  unaffected  by  any  judicial  sale  of  their  real 
estate.  In  case  of  any  irregularity  of  the  proceedings,  there 
is  no  presumption  to  aid  the  record.17 

Again,  counsel  should  see  to  it  that  the  court  m  which  he 
brings  his  action   has  jurisdiction   to   do   what   is    asked.      If 


is  Rinehart  v.  Chittenden,  Su- 
preme Court,  unreported.  "A  first 
mortgagee,  who  is  made  a  defend- 
ant to  a  suit  tor  the  foreclosure  of 
a  second  mortgage,  without  any  al- 
legation in  the  complaint  contest- 
ing his  title,  has  a  right  to  assume 
that  the  proceeding  is  to  be  con- 
ducted upon  the  theory  that  his 
lien  is  paramount  to  that  of  the 
plaintiff."  Strobe  v.  Downer,  13 
Wis.  10;  Southward  v.  Jameson, 
G6  0.  S.  311;  Koelsch  v.  Mixer,  52 
0.  S.  207;   Spoors  v.  Coen,  44  0.  S. 


497;  Munday  v.  Vail,  43  N.  J.  L. 
418;  Black  on  Judgments,  vol.  1, 
§  184;  Freeman  on  Judgments,  vol. 
1,  §  158. 

1,5  When  the  record  shows  affirm- 
atively that  infants  were  not 
served,  the  decree  as  to  them  is 
void.     Moore  v.  Starks,  1  0.  S.  369. 

i7See  §38  as  to  the  manner  of 
service  upon  infants.  See  Nos.  195 
and  190  for  the  conduct  of  the  de- 
fense of  an  insane  person,  though 
not  under  guardianship. 


51 


REAL   ESTATE    UNDER   JUDGMENTS. 


§  61 


the  court  has  no  jurisdiction  of  the  subject  matter,  then  a 
purchaser  of  the  real  estate  takes  no  title,  and  the  person 
or  persons  whose  real  estate  is  sought  to  be  sold,  can,  at 
any  time,  take  possession  of  the  same.  The  order  of  the 
court  in  such  case  affords  no  protection.  A  judgment  of  the 
court,   without  jurisdiction,   is  an   absolute   nullity.18 

Waiver  of  summons  and  entry  of  appearance  may  give  the 
court  jurisdiction  over  the  person  of  the  defendant,  but  it 
cannot  give  the  court  jurisdiction  over  a  subject  matter  over 
which  the  court  is  not  authorized  to  exercise  its  jurisdiction.19 

Sec.  61.     Judgments  cannot  bei  collaterally  attacked. 

When  a  court  has  jurisdiction  of  the  subject  matter  and 
the  parties,  and  a  case  is  made  by  the  pleadings,  its  judg- 
ment, however  erroneous,  is  binding  until  reversed,  and  such 
errors  are  not  available  on  collateral  attack  on  the  judg- 
ment.20 

A  direct  attack  on  a  judgment  is  one  by  which  the  judg- 
ment is  directly  assailed  by  some  mode  authorized  by  law. 
A  collateral  attack  on  a  judgment  is  an  attempt  to  defeat 
the  operation  of  a  judgment  in  a  proceeding  where  some 
new  right  derived  from  or  through  the  judgment  is  involved.21 


isPennywit  v.  Foote,  27  0.  S. 
600;  Spier  v.  Corll,  33  O.  S.  236; 
Gilliland  v.  Sellars,  2  0.  S.  223; 
Moore  v.  Starks,  1  O.  S.  369; 
Fleischman  v.  Walker,  91  111.  318; 
Santon  v.  Ballard,  133  Mass.  464; 
St.  Louis  v.  Coal  Co.,  Ill  111.  32; 
Winemiller  v.  Laughlin,  51  0.  S. 
421;  Adams  v.  Jeffries,  12  0.  253. 
See   §  9   and  following  as  to  venue. 

if  Kinkead's  Practice,  §  806 ;  Gil- 
liland v.  Sellars,  2  O.  S.  223.  See 
No.  71  for  form. 

20  Hammond  v.  Davenport,  16  O. 
S.  182.  It  has  been  settled  in  this 
State,  in  respect  of  domestic  judg- 
ments of  courts  of  general  juris- 
diction, that,  where  it  appears 
from  the  record  that  the  court  has 
positively  found  the  fact  or  fact? 
on  which  its  jurisdiction  legally 
rests,  the  jurisdiction  may  not 
afterward  be  collaterally  ques- 
tioned;   that,   though  the  judgment 


may  be  or  may  have  been  avoid- 
able when  attacked  in  a  direct  pro- 
ceeding for  that  purpose,  it  is  not 
and  may  not  be  shown  collaterally 
to  be  void.  Ibid.  Callen  v.  Ellison, 
13  0.  S.  466.  See,  also,  on  this 
subject,  Trimble  v.  Longworth,  13 
O.    S.    431;     More    v.    Robinson,    6 

S.  302;    Fowler  v.  Whiteman,   2 

S.  270;  Reynolds 
344;  Newman 
323 ;    Corcoran 

409 ;  Douglass  v. 
271;  Payne  v.  Moreland,  15  0.  435; 
Boswell  v.  Sharp,  15  O.  447; 
Adams  v.  Jeffrey,  12  O.  253;  Fos- 
ter v.  Douglass,  8  O.  87;  Douglass 
v.  McCoy,  5  0.  522;  Buell  v.  Cress, 
4  O.  327;  Biarelow  v.  Bigelow,  4  O. 
428. 

21  By  the  court   in 
v.   Towsley,   56   0.   S, 
action     on     a     personal     judgment, 
whether  rendered  by  a  court  of  this 


o 
0 
20  O 
18  O 
0 


Stansbury, 
v.  Cincinnati, 
v.  Loring,  17 
Massie,   16  0. 


Kinjjsborough 
458.     "In  an 


§62 


MERWINE    ON    REAL    ACTIONS. 


52 


Sec.  62.     A  judgment  of  the  court  as  between  the  parties  is 
final. 

A  judgment  in  an  action  upon  the  merits  of  a  case  is  final 
and  such  judgment  is  a  bar  to  a  second  suit  for  the  same 
cause,  and  when  a  matter  is  finally  determined  in  an  action 
between  the  same  parties  by  a  competent  tribunal,  it  is  to 
be  considered  at  an  end,  not  only  as  to  what  was  determined 
but  also  as  to  every  other  question  which  the  parties  might 
have  litigated  in  the  case.  And  as  to  these  two  proposi- 
tions, decrees  in  chancery  stand  upon  the  same  footing  as 
judgments  in  law.22 

The  principle  of  the  finality  of  the  judgment  is  known  as 
res  judicata;  it  has  been  said,  as  a  fundamental  rule,  that, 
when  a  matter  has  once  become  res  judicata  there  shall  be 
an  end  to  the  question.23 

The  reason  and  principle  upon  which  this  rule  is  based  rests 
upon  the  expediency  of  ending  the  contention  of  the  parties 
and  of  accomplishing  the  ends  of  justice  by  a  single  and 
speedy  decision  of  all  their  rights,  and  again,  "human  life 
is  not  long  enough  to  allow  of  matters  once  disposed  of, 
being  brought  under  discussion  again."  The  rule  is  also 
founded   on  a  wise   public;   policy   which    requires  stability   of 


State  or  elsewhere,  it  is  competent 
to  plead  and  prove  in  defense, 
though  it  lie  in  contradiction  of  the 
record,  that,  the  defendant  was  not 
served  with  process,  nor  jurisdic- 
tion of  his  person  otherwise  ob- 
tained by  the  court  rendering  the 
judgment."  Such  defense  is  not,  a 
collateral  attack  upon  the  judg- 
ment.    Ibid. 

22  Robey  v.  Rainsberger,  27  0.  S. 
677;  Petert-ine  v.  Thomas.  28  0.  S. 
r>!)7;  Covington  v.  Sargeant,  27  <>. 
233;  Binton  v.  McNeil,  5  <  >.  r»OD; 
Babcock  v.  (amp,  12  0.  S.  11; 
Loudenback  v.  Collins,  4  0.  S.  251 , 
Welch  v.  Childs,  17  0.  8.  :ii«). 

.Mr.  Freeman,  in  his  work  on 
Judgments.  §249,  puts  the  propo- 
sitions above  in  the  following  lan- 
guage : 

"Adjudication    is    final    and    con- 


clusive, not  only  as  to  the  matters 
actually  determined,  hut  as  to 
every  other  matter  which  the  par- 
ties might  have  litigated  and  have 
decided  as  incidental  to  or  essen 
tially  connected  with  the  subject 
matter  of  the  litigation,  and  every 
matter  coming  within  the  legiti- 
mate purview  of  the  original  ac- 
tion, both  in  respect  to  matters  of 
claim  and  defense."  Harris  v.  Har- 
ris, :!t;  Barb,  ss;  ( 'lemons  v.  I  Hem 
ons,  :'.7  X.  Y.  59;  Burford  v.  Kur 
sev,  is  Miss.  843;  Bass  v.  Spooner, 
15  Ind.  18!) ;  Tusca  v.  O'Brien,  88 
X.  V.  446;  Case  v.  Beauregard,  101 
r.  s.  688;  Thomas  v.  Myrick,  21 
Minn.  1;  Jacobsin  v.  Miller,  11 
Mich.  -90;  Knight  v.  Atkinson,  2 
Tenn.   384, 

28  Great    Northern    v.    Mosop,    17 
Com.   B.   140. 


53 


REAL    ESTATE    UNDER    JUDGMENTS. 


§63 


judicial  records  for  the  protection  of  those  who  acquire  rights 
and   property   in    reliance    upon   their   conclusive   effect.24 

If  the  rule  were  otherwise  there  would  be  no  end  to  liti- 
gation ;  for  a  judgment  would  finally  come  to  the  one  whose 
money  and  time  would  enable  him  to  exhaust  his  adversary. 

Sec.  63.     The  effect  of  court's  finding  of  facts  giving  it  power 
to  enter  judgment. 

In  all  cases,  where  the  court  finds  and  states  in  a  judg- 
ment, facts  giving  the  court  power  and  jurisdiction  to  enter 
the  judgment  or  decree,  such  finding  imports  absolute  verity 
and  is  conclusive  upon  parties  and  their  privies.  While  such 
finding  is  unreversed,  it  is  conclusive  of  the  matter  so  found. 
The  judicial  record  of  a  judgment  or  decree  cannot  be  con- 
tradicted by  parol,  nor  is  the  truth  of  the  matters  therein 
recited  open  to  investigation.  Were  the  findings,  judgments 
and  decrees  of  the  court  open  to  investigation,  there  would 
be  no  security  for  the  innocent  purchasers  of  real  estate  at 
judicial  sale.  If  the  records  of  a  sale  of  real  estate,  under 
decree  of  the  court,  did  not  import  absolute  verity,  then 
every  purchaser  of  real  estate,  under  decree  of  the  court, 
would  be  required  to  look  beyond  the  record  to  see  whether 
clerks,  sheriffs,  courts  and  attorneys  did  their  duty,  commit- 
ted no  error,  and  each  had  the  power  to  do  the  various  things 
set  forth  in  the  record.  Such  a  condition  would  make  the 
complete  records  in  our  courts  of  judicial  sales  of  real  estate 
no  nrotection  whatever,  but  such  records  would  be  a  snare 
to  nonest  purchasers.25 


24  Robey  v.  Rarinsberger,  27  0.  S. 
677;  Oreat  Northern  v.  Mosop,  17 
Com.  B.  140;  Boswell  v.  Sharp,  15 
O.  441  ;  Kingsbury  v.  Towsley,  56 
0.  S.  450.  This  rule  "seems  to 
have  been  adopted  from  right  and 
necessity  to  give  confidence  to  the 
judicial  action  of  the  country,  and 
to  protect  those  who  have  made 
purchases  on  the  faith  of  judicial 
sales."  Budd,  J.,  in  Boswell  v. 
Sharp.   15  0.  447. 

2?Callen  v.  Ellison,  13  O.  S.  455; 
Lessee  v.  Whitman,  2  0.  S.  270; 
Moore  v.  Starks,  1  0.  S.  369;  Bos- 
well v.  Sharp,  15  0.  447;  Buchanan 


v.  Roy,  2  0.  S.  251;  Richards  v. 
Skeff,  8  O.  S.  589;  Trimble  v. 
Longworth,  13  O.  S.  431;  Miller  v. 
Erdhouse,  2  W.  L.  B.  84.  Probate 
Courts,  in  Ohio,  are  courts  of  rec- 
ord in  the  fullest  sense  of  the 
term.  Their  findings,  orders  and 
judgments  import  absolute  verity, 
and  are  not  subject  to  collateral 
attack.  Schroyer  v.  Richmond,  16 
O.  S.  455;  Swazey  v.  Blacknian,  8 
O.  5.  A  finding  by  the  Probate 
Court  that  service  is  complete  can- 
not be  impeached  collaterally. 
Railroad  v.  Belle  Center,  48  0.  S. 
273. 


§64 


HER  WINE    ON    REAL    ACTIONS. 


54 


Sec.  64.     Effect  of  a  voidable  and  void  judgment. 

All  judgments  are  either  voidable  or  void.  A  voidable 
judgment,  in  so  far  as  the  record  is  concerned  and  in  so  far 
as  it  concerns  property  rights,  is  good,  valid  and  binding 
until  it  is  set  aside  by  the  court  in  an  action  brought  for 
that  purpose.  Voidable  judgments,  as  shown  above,  cannot 
be  attacked  collaterally.  This  principle  is  assuming  a  great 
deal  of  importance  in  this  State,  especially  as  to  judicial 
sale  of  real  estate.  Real  estate  sold  under  a  voidable  judg- 
ment or  decree  gives  a  title  that  cannot  be  assailed  except 
by  some  of  the  methods  given  by  statute  to  reverse  the  order, 
decree,  or  judgment  in  the  case  in  which  the  real  estate  was 
sold.  The  statute  gives  the  right  to  prosecute  error  for  the 
reversal  or  setting  aside  of  the  decree  or  judgment,  within 
a  proper  time ;  it  also  gives  any  aggrieved  party  the  right, 
at  any  time,  after  the  term  at  which  the  judgment  was  ren- 
dered, to  file  his  petition  to  vacate  and  set  aside  the  judg- 
ment for  any  of  the  grounds  mentioned  and  set  forth  in  the 
statute. 

In  addition  to  these  methods  a  judgment  or  decree  may  be 
set  aside  by  a  proceeding  in  equity.26 

The  rights  of  a  purchaser,  who  has  purchased  real  estate 
under  a  decree  or  judgment  of  the  court,  which  is  voidable 
and  can  be  set  aside,  are  discussed  at  another  place  in  this 
work.27 

We  find  an  entirely  different  principle  applicable  to  void 
judgments.  A  void  judgment  is  subject  to  a  collateral  at- 
tack. If  a  judgment  is  void,  it  has  no  force  or  effect,  and 
it  can  be  assailed  in  any  action,  by  anyone.  Such  a  judg- 
ment is  void  anywhere  and  for  every  purpose.  A  purchaser 
of  real  estate  sold  under  a  void  judgment  takes  no  title.28 

It  has  been  said  of  such  judgment : 


26  Kingsborough    v.    Towsley,    56 
O.  S.  402. 

27  Boswell  v.  Sharp.  15  O.  447 ; 
Moore  v.  Robinson,  0  0.  S.  302 ; . 
Wyer  v.  Zanc,  3  0.  30G;  LaGrange 
v.  Ward,  11  0.  258;  Paine  v.  Moor- 
head,  15  0.  435;  Buell  v.  Cross,  4 
O.  327;  Cochran  v.  Loring,  17  O. 
409;  Toledo  v.  Preston,  50  0.  S. 
301;   Shroyer  v.  Richmond,   10  0.  S. 


400.  As  to  the  protection  afforded 
purchasers  in  such  cases,  see  R.  S. 
§5400    (Gen'l    Code    §11702). 

28  Kingsbury  v.  Towsley,  50  0.  S. 
450;  Ream  v.  Wools,  01  0.  S.  131; 
Spoors  v.  Coen,  44  0.  S.  407;  Moore 
v.  Starks,  1  0.  S.  330;  Sheldon  v. 
Newton,  3  0.  S.  404;  fallen  v.  El- 
lison, 13  0.  S.  455;  Spier  v.  Corll, 
33  0.  S.  230;   Winemiller  v.  Laugh- 


55  REAL    ESTATE    UNDER    JUDGMENTS.  §  64 

"A  void  judgment  is,  in  legal  effect,  no  judgment.  By  it 
no  rights  are  divested.  From  it  no  rights  can  be  obtained. 
Being  worthless  in  itself,  all  proceedings  founded  upon  it 
are  equally  worthless.  It  neither  binds  nor  bars  anyone.  All 
acts  performed  under  it  and  all  claims  flowing  out  of  it  are 
void.  The  parties  attempting  to  enforce  it  may  be  responsible 
as  trespassers.  The  purchaser  at  a  sale  by  virtue  of  its  au- 
thority finds  himself  without  title  and  without  redress.  The 
first  and  most  material  inquiry  in  relation  to  a  judgment  or 
decree,  then,  is  in  reference  to  its  validity.  For  if  it  be  null, 
no  action  upon  the  part  of  the  defendant,  no  resulting  equity 
in  the  hands  of  third  persons,  no  power  residing  in  any  leg- 
islative or  other  department  of  the  Government,  can  invest 
it  with  any  of  the  elements  or  power  or  of  vitality.  It  does 
not  terminate  or  discontinue  the  action  in  which  it  is  en- 
tered, nor  merge  the  cause  of  action;  and  it  therefore  cannot 
prevent  the  plaintiff  from  proceeding  to  obtain  a  valid  judg- 
ment upon  the  same  cause,  either  in  an  action  in  which  the 
void  judgment  was  entered  or  in  some  other  action."23 

A  purchaser  at  a  judicial  sale  made  under  a  void  judg- 
ment cannot  sustain  his  title.  Title  to  real  estate  sold  under 
a  voidable  judgment  is  good  as  long  as  the  judgment  remains 
in  force. 

Another  distinction  between  a  void  and  a  voidable  judg- 
ment, is  the  lack  of  power  or  want  of  jurisdiction  in  the 
court,  and  a  wrongful  or  defective  execution  of  power.  In 
the  first  instance,  all  acts  of  the  court,  not  having  jurisdic- 
tion or  power,  are  void,  in  the  latter  voidable  only.  A  court 
then  may  act,  first,  without  power  or  jurisdiction;  second, 
having  power  or  jurisdiction,  may  exercise  it  wrongfully 
or  third,  irregularly.  In  the  first  instance,  the  act  or  judg- 
ment of  the  court  is  wholly  void,  and  is  as  though  it  had 
not  been  done.  The  second  is  wrong  and  must  be  reversed 
on  error.  The  third  is  irregular  and  must  be  corrected  by 
motion.30 


lin,  51  O.  S.  421;  McAlpine  v.  Fes-  void,  the  land  itself  sold  to  satisfy 

terwald,   57   O.   S.   524;    Southward  it  may  be  recovered  back,  and  such 

v.  Jamison,  G6  0.  S.  290.  proceeding    may    be    impeached    col- 

29  Freeman  on   Judgments.    §117,  laterally.       The     result     or     conse- 

vol.    1,  and   authorities    there   cited.  quence,  in  such  case,  is  precisely  as 

so  Lessee  v.  Loring,   17  0.  S.  423.  though  no  such  judgment  or  decree 

"If    the    judgment    or    decree    is  had    ever    been    rendered     or    pro- 


§65 


MERWINE    ON    REAL    ACTIONS. 


56 


Sec.    65.     The  rule   caveat   emptor   applies   to   purchasers   at 
judicial  sale. 

The  sheriff  or  other  officer,  who  sells  real  estate  under  a 
decree  or  judgment  of  the  court,  never  warrants  title;  he 
sells  only  the  interest  of  the  judgment  debtor  in  the  lands. 
At  such  sale  the  rule  caveat  emptor  applies.  This  term 
means,  "Let  the  purchaser  bewrare,"  and  it  applies  in  all  its 
rigor.  Under  this  doctrine  a  purchaser  at  a  judicial  sale, 
whether  by  a  sheriff,  master  commissioner,  an  assignee  in 
insolvency,  trustee  in  bankruptcy,  executor  or  administrator, 
by  order  of  the  probate  court  or  at  private  sale,  buys  with 
his  eyes  open  at  his  own  risk,  and  he  is  without  recourse  in 
case  it  is  afterward  ascertained  that  lienholders  were  not 
made  a  party  and  have  a  substantial  interest  in  the  real 
estate.  Such  purchaser  is  bound  to  search  the  record  to  ascer- 
tain the  condition  of  the  title  before  bidding,  and  failing  to 
do  so,  he  must  abide  by  the  consequences  of  his  neglect.31 


nounced.  If  the  judgment  or  de- 
cree be  not  void,  but  simply  errone- 
ous, subject  to  reversal  upon  writ 
of  error  or  review,  the  consequences 
are  wholly  different.  They  must  be 
impeached  directly,  and  cannot  be 
questioned  collaterally;  and,  when 
reversed,  the  defendant  shall  have 
restitution  in  money  against  plain- 
tiff, and  purchasers  hold  the  land 
or  property  acquired  by  the  sale 
had  under  such  judgment  or  decree 
undisturbed."  Boswell  v.  Sharp, 
15  0.  464;  Lessee  v.  Mooreland,  15 
0.  445. 

3i  Mechanics  v.  O'Conner.  29  0. 
S.  G55;  Hagerty  v.  Columbus,  14 
O.  D.  N.  P.  1;  French  v.  Millard, 
2  0.  S.  45;  Brickell  v.  Miles,  2  N. 
P.  N.  S.  154;  Scribner  v.  Lock- 
wood,  9  O.  187;  Vattier  v.  Lylte,  6 
0.  473;  Pittsburg  v.  Lynde,  55  O.  S. 
23;  Arnold  v.  Donaldson.  4(1  O.  S. 
73;  Ketchem  v.  Fitch,  13  0.  S.  201 ; 
Dunlap  v.  Robinson,  12  0.  S.  530; 
Westfall  v.  Dun-ran,  14  0.  S.  276; 
Creps  v.  Baird,  3  0.  S.  277;  Cor- 
win  v.  Benham,  2  ().  S.  37;  Rob- 
erts v.  Doun,  20  W.  L.  1?.  397;  Mc- 
Kenzie    v.    Purill,    15    O.    S.     162; 


Dresbach  v.  Stein,  41  0.  S.  70;  Rid- 
dle v.  Bryan,  5  0.  48.  A  party 
bidding  with  notice  of  an  equity 
takes  subject  thereto.  Gutshall  \. 
Salsbury,  W.  127.  A  party  bid- 
ding under  mistaken  notion  that 
he  was  bidding  on  other  property 
will  be  relieved.  Falls  v.  Lough- 
lad,  14  W.  L.  B.  56.  Defect  of 
title  no  reason  for  setting  aside  a 
sale  fairly  made.  Poud  v.  Emily, 
Dayton,  284;  Gilbert  v.  Armstrong, 
Dayton,  149.  Lien  holder  not  made 
a  party  to  the  proceeding,  no  rea- 
son for  avoiding  sale.  Brickell  v. 
Miles,  2  X.  P.  N.  S.  154.  A  pur- 
chaser at  sheriff's  sale  acquires  no 
greater  interest  than  the  judgment 
debtor  had  at  the  time  of  levy  and 
sale.  Louth  v.  Rathbone,  19  O.  21. 
As  to  rights  of  a  boiw  fide  pur- 
chaser at  judicial  sale,  without 
knowledge  or  notice,  see  Fash  v. 
Unbaugh,  22  C.  ('.  409.  A  person 
executing  a  defective  deed  for  the 
conveyance  of  land,  which  deed  has 
not  been  recorded,  has  an  interest 
in  the  land  capable  of  being  at- 
tached; and,  if  attached  and  sold 
as  the  property  of  a  vendor,  a  pur- 


57  REAL    ESTATE    UNDER    JUDGMENTS.  §§  66,  67 

The  law  in  Ohio  is  settled  that  the  legal  maxim,  caveat 
emptor,  applies  to  sales  of  property  by  the  sheriff.  It  is  the 
duty  of  the  purchaser  to  examine  the  public  records  before 
he  undertakes  to  bid  on  the  property  and  satisfy  himself  as 
to  whether  any  lien  exists.  Not  having  done  so,  he  cannot 
object  to  take  the  title  after  he  has  bid  it  in  at  judicial  sale. 
The  rule  will  not  permit  one  to  enter  into  competition  for 
the  purchase  of  property  at  judicial  sale  with  those  who  may 
have  been  more  careful  than  himself  in  their  examination  of  the 
title  to  the  property  and  then  after  it  is  sold,  object  to  taking 
the  title,  because  on  account  of  his  own  want  of  care  and 
prudence  certain  defects  exist  in  the  title,  or  liens  or  in- 
cumbrances exist  on  the  property  of  which  he  is  not  aware.32 

Sec.  66.    Effect  of  sales  made  under  void  and  voidable  judg- 
ments and  decrees. 

If  the  judicial  sale  of  real  estate  is  made  under  a  void 
judgment,  the  land  is  unaffected  by  the  sale,  and  the  party 
who  had  the  title  thereto  prior  to  the  proceedings  under 
which  the  sale  was  attempted  to  be  made  can  recover  it  back. 
The  proceedings  under  which  the  sale  was  made  can  be  im- 
peached collaterally.  As  has  been  shown  heretofore,  the  pro- 
ceedings and  the  sale  made  thereunder  are  as  though  there 
had  been  no  proceedings  or  sale.  On  the  other  hand,  a  sale 
of  real  estate  under  a  voidable  judgment  or  decree,  is  valid 
and  binding  until  the  judgment  or  decree  under  which  it  was 
made  is  set  aside  and  reversed  by  an  action  or  proceeding 
brought  directly  for  that  purpose.33 

Sec.  67.  Purchasers  at  judicial  sale  protected  by  the  record- 
ing statute. 
The  statute  provides  and  regulates  what  instruments  con- 
cerning real  estate  must  be  filed  and  recorded.  It  also  pro- 
vides that  if  any  instrument  shall  not  be  so  filed  and  re- 
corded within  the  time  prescribed,  the  same  shall  be  deemed 
fraudulent,  so  far  as  relates  to  any  subsequent  bona  fide  pur- 
chaser,   having,    at    the    time    of    making    such     purchase,    no 

chaser,      without      notice      of      the  32  Brickell  v.  Miles,  2  X.  P.  N.  S. 

equity,  takes  a  good  title  as  an  in-  154. 

nocent    purchaser     without     notice.  33  Boswell  v.  Sharp,  15  0.  464. 
Paine  v.  Mooreland,  15  0.  436. 


§  68  MERWINE    ON    REAL    ACTIONS.  58 

knowledge  of  the  existence  of  such  former  deed  or  instru- 
ment.34 

It  has  been  decided  by  the  courts  that  purchasers  at  judi- 
cial sale,  without  notice  of  a  prior  unrecorded  deed  of  the 
judgment  debtor,  is  within  the  protection  of  the  statute  the 
same  as  purchasers  at  private  sale.35 

Sec.  68.     Judgments  may  be  vacated  during  the  term,  when. 

A  new  trial  is  a  re-examination,  in  the  same  court,  of  an 
issue  of  fact,  after  a  verdict  by  a  jury,  a  report  of  a  referee 
or  a  master  or  a  decision  by  the  court ;  and  the  former 
verdict,  report,  or  decision,  can  be  vacated,  and  a  new  trial 
granted,  on  the  application  of  the  party  aggrieved,  for  any 
of  the  following  causes  affecting  materially  the  substantial 
rights  of  such  party:  (a)  Irregularity  in  the  proceedings 
of  the  court,  jury,  referee,  master,  or  prevailing  party,  or 
any  order  of  the  court,  or  referee,  or  abuse  of  discretion,  by 
which  the  party  was  prevented  from  having  a  fair  trial, 
(b)  Misconduct  of  the  jury  or  prevailing  party.  (c)  Acci- 
dent or  surprise,  which  ordinary  prudence  could  not  have 
guarded  against.  (d)  Excessive  damages  appearing  to  have 
been    given    under    the    influence    of    passion    or    prejudice. 

(e)  Error  in  the  assessment  of  the  amount  of  recovery, 
whether  too  large,  or  too  small,  when  the  action  is  upon  a 
contract,     or     for     the     injury     or     detention     of     property. 

(f)  That  the  verdict,  report  or  decision  is  not  sustained  by 
sufficient  evidence,  or  is  contrary  to  law.  (g)  Newly  dis- 
covered evidence  material  for  the  party  applying,  which  he 
could  not,  with  reasonable  diligence,  have  discovered  and 
produced  at  the  trial.  (h)  Error  of.  law  occurring  at  the 
trial  and  excepted  to  by  the  party  making  the  application.36 

An  extended  discussion  of  this  subject  in  this  and  the  fol- 
lowing paragraphs  on  the  same  subject  cannot  be  given  here; 
because  so  much  of  this  law  may  not  enter  into  the  pro- 
cedure relating  to  the   sale  of  real  estate  by  judicial  decree. 


■^r.on'l      Code,      §8543      (R.  S.  S.  137;  Scribner  v.  Lockwood,  9  0. 

§4134).  184. 

so  Morris    v.    Daniels,    35    O.  S.  so  Gen'l     Code,     §11575     (R.     S. 

40G;   Sternberger  v.  Ragland,  57  O.  §5305). 


59  REAL   ESTATE    UNDER    JUDGMENTS.  §  69 

Sec.  69.     Judgments  may  be  vacated  after  term,  when. 

The  common  pleas  court,  or  the  circuit  court,  may  vacate 
or  modify  its  own  judgments  or  orders  after  the  term  at 
which  the  same  was  made  in  the  following  cases:  (a)  By 
granting  a  new  trial  for  the  cause  within  the  time  and  in 
the  manner  provided  in  the  following  section  of  the  Revised 
Statutes :  When  the  grounds  for  a  new  trial  could  not,  by 
reasonable  diligence,  have  been  discovered  before,  but  are  dis- 
covered after,  the  term  at  which  the  verdict,  report  or  de- 
cision was  rendered  or  made,  the  application  may  be  made 
by  petition,  filed  as  in  other  cases,  not  later  than  the  second 
term  after  the  discovery;  whereupon  a  summons  shall  issue, 
and  be  returnable  and  served,  or  publication  made,  as  pre- 
scribed in  section  fifty  fifty  (Gen'l  Code,  §11298);  the  facts 
stated  in  the  petition  shall  be  considered  as  denied  without  answer ; 
if  the  service  be  complete  in  vacation,  the  case  shall  be  heard  and 
summarily  decided  at  the  ensuing  term,  and  if  in  term,  it  shall  be 
heard  and  decided  after  the  expiration  of  twenty  days  from  such 
service ;  and  the  case  shall  be  placed  on  the  trial  docket,  and  the 
witnesses  shall  be  examined  in  open  court,  or  their  depositions 
taken,  as  in  other  cases;  but  no  such  petition  shall  be  filed  more 
than  one  year  after  the  final  judgment  was  rendered.37  (b)  By 
a  new  trial  granted  in  proceedings  against  defendants  con- 
structively summoned,  as  provided  in  section  fifty  forty-eight  of 
the  Revised  Statutes  of  Ohio  (Gen'l  Code,  §11296)  (c)  For 
mistake,  neglect  or  omission  of  the  clerk,  or  irregularity  in  obtain- 
ing a  judgment  or  order,  (d)  For  fraud  practiced  by  the  success- 
ful party  in  obtaining  judgment  or  order,  (e)  For  erroneous 
proceedings  against  an  infant,  or  person  of  unsound  mind, 
when  the  condition  of  such  defendant  does  not  appear  in  the 
record,  nor  the  error  in  the  proceedings.  (f)  For  the  death 
of  one  of  the  parties  before  the  judgment  in  the  action, 
(g)  For  unavoidable  casualty  or  misfortune  preventing  the 
party  from  prosecuting  or  defending.  (h)  For  errors  in  a 
judgment,  shown  by  an  infant  within  twelve  months  after 
arriving  at  full  age,  as  prescribed  in  section  fifty-three  hundred 
and  thirty  of  the  Revised  Statutes  of  Ohio  (Gen'l  Code,  §  11603). 
(i)   For  taking  judgments  upon  warrants  of  attorney  for  more 

37  Gen'l    Code      §11580      (R.     S.    §5309). 


§  69  MERWINE   ON    REAL    ACTIONS.  60 

than  was  due  the  plaintiff,  when  the  defendant  was  not  summoned, 
or  othewise  legally  notified  of  the  time  and  place  of  taking  such 
judgment,  (j)  When  such  judgment  or  order  was  obtained,  in 
whole  or  in  a  material  part,  by  false  testimony  on  the  part  of 
the  successful  party,  or  any  witness  in  his  behalf,  which  ordi- 
nary prudence  could  not  have  anticipated  or  guarded  against, 
and  the  guilty  party  has  been  convicted.38 

In  order  to  vacate  or  set  aside  a  voidable  judgment  or 
decree,  the  statutory  methods  pointed  out  above  must  be  fol- 
lowed. Until  the  voidable  judgment  or  decree  is  vacated  or 
the  proceedings  set  aside  under  the  one  or  the  other  of  these 
methods,  or  by  the  court  under  its  power  over  its  own  orders, 
judgments,  or  decrees  entered  during  the  term,  the  order,  judg- 
ment, or  decree  of  the  court,  or  the  sale  of  the  real  estate  made 
thereunder,  will  be  valid  and  binding. 

While  these  two  sections  of  the  statute39  give  the  method  for 
a  direct  attack  upon  a  judgment,  they  are  not  the  only  methods. 
The  old  equity  remedy  of  vacating  a  judgment  still  exists,  and  it 
has  not  been  taken  away  by  the  Code.  One  court  has  said  that  as 
the  ultimate  legal  and  equitable  rights  of  the  parties  concerning 
the  subject  matter  of  the  litigation  may  now  be  finally  deter- 
mined in  the  civil  actions  of  the  Code,  which  has  taken  the  place 
of  both  the  former  actions  at  law  and  suit  in  equity,  there  is 
no  reason  why,  in  an  action  on  a  judgment,  the  defendant 
may  not  plead  by  way  of  defense,  any  matter  which  would 
have  been  available  as  a  ground  of  relief  in  equity  against 
the  judgment.40 

A  court  possessing  general  jurisdiction  in  equity  has  the 
power  to  correct  mistakes  in  the  procedure  in  the  probate 
court  for  the  sale  of  real  estate  in  any  of  the  actions  for  such 
sale  authorized  by  law.  Not  only  can  such  court  correct  a 
mistake  in  the  proceedings,  but  it  can  correct  the  deed  into 
which  the  error  may  be  carried.     Such  jurisdiction  in  equity 

ssGen'l    (ode,     §11031      (R.     S.  Bank,     11     Humph.     523;     Bell     v. 

§5354).  Williams,    1    Head,   229;    McNeil  v. 

so  Gen'l  Code,  §§  11575  and  11631  Eddie,   24    Kan.    L08;    Pemroyer    v. 

(R.  S.  §§5305  and  5354).  Nell',  95  U.  S.  714;   Freeman  v.  An- 

40  p,y  the  court  in    Kingshorough  derson,  119  U.  S.  185;  Needham  v. 

v.  Towsley,  56   0.   S.   462;    Bank  v.  Thayer,  147  Mass.  536. 
Stevens,   1   0.   S.  233;   Ridgeway  v. 


61 


REAL    ESTATE    UNDER    JUDGMENTS. 


§70 


to    relieve   against   a   mistake   in   the   rendition   of   judgments 
has  often  been  invoked  by  the  courts  of  our  country.41 
Parol  evidence  is  admissible  to  show  the  mistake.42 

Sec.   70.     Effect   on   purchaser's   title   at   judicial   sale   when 
judgment  or  decree  reversed  and  set  aside. 

If  a  judgment,  or  decree,  in  satisfaction  of  which  lands 
or  tenements  are  sold,  be  thereafter  reversed,  such  reversal 
will  not  defeat  or  affect  the  title  of  the  purchaser;  but  in 
such  case  restitution  will  be  made  by  the  judgment  creditor, 
of  the  money  for  which  such  lands  or  tenements  were  sold, 
with  lawful  interest  from  the  day  of  sale.43 

This  statute  was  passed  to  subserve  a  wise  public  policy, 
which  required  that  title  to  real  estate  purchased  at  judicial 
sale  should  be  protected  as  far  as  possible.  If  it  were  not 
for  this  provision  of  law,  bidders  would  not  come  to  judi- 
cial sales.  Because  of  this  statute  bidders  at  such  sales  are 
encouraged,   and   property    sells  higher.44 

This  protection  of  the  statute  extends  to  a  defendant  lien 
holder  who  purchased  at  a  sheriff's  sale,  under  a  judgment 
which  was  reversed. 

A  purchaser  at  an  administrator  or  executor's  sale  of  real 
estate  will  be  entitled  to  the  protection  afforded  by  the  stat- 


4i  Stiles  v.  Widener.  35  O.  S. 
555;  Gill  v.  Pelkey,  54  O.  S.  348; 
Chase  v.  Manhardt,  1  Bland  Ch. 
(Md.)  350;  Ford  v.  Ford,  Walker 
(Miss.),  505;  Drew  v.  Clark,  Cook 
(Tenn. ),  373;  Brewer  v.  Jones,  44 
Ga.  71;  The  County,  etc.,  v.  Ky., 
40  la.  057;  Wilson  v.  Boughton,  50 
Mo.  1 ;  Barthell  v.  Roderick.  34  la. 
518;  Boon  v.  Miller,  16  Mo.  457; 
Partridge  v.  Harrow,  27  la.  96 ; 
Hedge  v.  Sims,  29  Ind.  574;  Griffin 
v.  Bixby.  12  N.  H.  454;  Lanman  v. 
Crooker,  97  Ind.  1(34.  But  a 
guardian's  deed  of  land  sold  under 
a  proceeding  in  the  Probate  Court 
cannot  be  reformed  because  the 
guardian  supposed  the  proceeding 
to  embrace  more  land  than  was  de- 
scribed, and  the  buyer  believed  he 
was  buying  all.  Dickey  v.  Beaty, 
14  O.  S.  389. 

42  Gill  v.  Pelkey,  54  O.  S.  348. 


«Gen'l  Code,  §  11702  (R.  S. 
§  5409 ) . 

44  Irwin  v.  Jeffers,  3  O.  S.  391; 
McBride  v.   Murphy,    14   O.   S.   349. 

"Where,  in  a  foreclosure  suit,  the 
summons  on  the  mortgagor  and  his 
wife  were  returned  as  personally 
served,  and  judgment  by  default 
was  regularly  taken,  the  purchaser 
at  the  sale  will  be  protected  in  his 
title,  though  after  the  mortgagor's 
death  his  widow  seeks  to  vacate 
the  sale  on  the  ground  that  the 
mortgage  as  to  her  was  a  forgery, 
and  that  she  was  not  served  in  the 
foreclosure  suit.  The  purchaser 
had  a  right  to  rely  on  the  record, 
and  the  widow  must  seek  her  rights 
in  the  purchase  money  paid  by  the 
purchaser  to  the  judgment  cred- 
itor." Miller  v.  Erd house,  2  W. 
L.  B.  84. 


§71 


MERWINE   ON    REAL   ACTIONS. 


62 


ute,  even  if  at  the  time  of  the  sale  he  has  been  made  aware 
that  the  judgment  or  order,  under  which  the  sale  was  made, 
will  be  set  aside.45 

The  protection 'of  this  statute  comes  only  to  a  stranger  to 
the  action,  when  the  judgment  is  reversed,  and  does  not  ap- 
ply to  strangers  who  are  purchasers  at  judicial  sales  where 
the  order  of  sale  or  confirmation  is  reversed.40 


Sec.  71.     Remedy  of  purchase  at  sale  on  execution,  if  the  sale 
is  invalid. 

If,  upon  the  sale  of  property  on  execution,  the  title  of  the 
purchaser  is  invalid  by  reason  of  a  defect  in  the  proceed- 
ings, the  purchaser  may  be  subrogated  to  the  right  of  the 
creditor  against  the  debtor,  to  the  extent  of  the  money  paid 
and  applied  to  the  debtor's  benefit,  and,  to  the  same  extent, 
such  purchaser  will  have  a  lien  on  the  property  sold,  as 
against  all  persons,  except  bona  fide  purchasers,  without  no- 
tice ;  but  nothing  in  the  provisions  of  this  paragraph  can  be 
construed  to  require  the  creditor  to  refund  the  purchase 
money,  by  reason  of  the  invalidity  of  any  such  sales,47  and 
the  provisions  of  this  paragraph  will  apply,  also,  to  all  sales 
by  order  of  the  court,  sales  by  executors,  administrators, 
guardians,  and  assignees,  and  to  all  sales  for  taxes.47* 

Purchasers  at  judicial  sales,  without  notice  of  a  prior  un- 
recorded deed  from  the  judgment  debtor,  are  within  the  pro- 


40  Irwin   v.   Jeffers,   3    0.    S.   389. 

"McMahon  v.  Davis,  19  C.  C. 
245;  McBain  v.  McBain,  15  0.  S. 
349;  Insurance  Co.  v.  Sampson,  3S 
0.  S.  672;  Roberts  v.  Price,  4  W. 
L.  M.  581.  Title  protected  if  judg- 
ment is  reversed  after  sale  and  be- 
fore confirmation.  McQuire  v.  Ely, 
\Y.  520.  Buyer  at  partition  sale 
not  a  trespasser  in  case  of  reversal. 
Dabney  v.  Manning,  3  0.  321.  In 
this  connection  see,  also,  Hubbell 
v.  Broadwell,  8  0.  120;  Walpole  v. 
Ink,  9  0.  142;  Taylor  v.  Boyd,  3  0. 
337. 

«  Gen'l  Code,  §  11703  (R.  S. 
§5410). 

*7*Gen'I  Code,  §11704  (R.  S. 
§5411).  "Where  mortgaged  prop- 
erty lias  been  sold  under  a  d(  eree 
in    foreclosure,    and    the    sale    con- 


firmed and  the  money  applied  in  the 
extinguishment  of  the  mortgage 
debt,  and  subsequently  the  judg- 
ment, order  of  sale  and  confirma- 
tion are  set  aside,  the  purchaser, 
although  a  stranger  to  the  pro- 
ceedings, does  not  hold  the  prop- 
erty as  under  section  5409,  (Gen'l 
Code,  §11702),  but  is  entitled 
to  be  subrogated  to  the  rights 
of  the  owner  of  the  mortgage, 
and  will  held  the  same  by  as- 
signment under  Gen'l  Code, 
§§  117(13  and  11704  ( R.  S.  §§5410 
and  5411)."  McMahon  v.  Davis, 
19  C.  C.  242.  .See,  also,  En- 
del  v.  Leibroke,  33  0.  S.  270; 
Wehrle  v.  Wehrle,  39  0.  S.  368; 
Doyle  v.  Brenneman,  2  N.  P.  415. 
'"Where  the  lands  incumbered  by 
various    liens    are    sold    in   judicial 


63 


REAL    ESTATE    UNDER    JUDGMENTS. 


§§72,  7b 


tection   of   the   statute    (Gen'l    Code,    §8543    [R.    S.    §4134]) 
equally  with  purchasers  ui  private  sale.48 

Sec.  72.     Not  necessary  to  reserve  rights  of  infants  in  a  judg- 
ment to  be  entered  against  them. 

It  will  not  be  necessary  to  reserve  in  a  judgment  or  order 
the  right  of  a  minor  to  show  cause  against  it  after  attaining 
the  age  of  majority;  but  in  any  case  in  which,  but  for  this 
section,  such  reservation  would  have  been  proper,  the  minor 
may,  within  one  year  after  arriving  at  the  age  of  majority, 
show  cause  against  such  order  or  judgment.40 

Sec.  73.     Bona  fide  purchaser  not  affected  by  the  preceding 
section. 

The  title  to  any  property  which  is  the  subject  of  the  judg- 
ment or  order  sought  to  be  opened,  and  which,  by,  or  in 
consequence  of,  the  judgment  or  order,  has  passed  to  a  pur- 
chaser in  good  faith,  will  not  be  affected  by  any  proceedings 
under  sections  fifty-three  hundred  and  fifty-four  and  fifty-three 
hundred  and  fifty-five  (Gen'l  Code,  §§11631  and  11632),  nor 
shall  the  title  to  any  property  sold  before  judgment  under  an 
attachment  be  affected  by  said  section.50 


proceedings  at  the  suit  of  one  of 
the  lienholders,  and  upon  cross- 
petitions  of  the  different  defendant 
lienholders,  and  are  purchased  at 
such  judicial  sale  by  a  defendant 
lienholder,  and  the  proceeds  of  sale 
are  distributed  among  the  several 
incumbrancers  by  order  of  the 
court,  agreeably  to  their  ascer- 
tained priorities,  such  purchaser, 
though  a  party  to  the  suit,  is  en- 
titled to  the  protection  which  the 
policy  of  the  statute  (Gen'l  Code, 
§11703  [R.  S.  §54-10])  affords  to 
purchasers  at  judicial  sales,  upon 
the  reversal  of  the  judgment  or  de- 
cree under  which  the  sale  was 
made."  McBride  v. 
0.  8.  349.  But 
Adm'r.  8  0.   120. 

48  Sternberger   v. 
S.     148:     Scribner, 
wood,  9   O.   184;    Morris  v.  Daniels, 
35    O.    S.    400;     Bassett    v.    Xote- 


Longworth,    14 
see    Hubbell     v. 

Ragland,   57   O. 

etc.,    v.     Lock- 


worthy,  2  Leading  Cases  in  Equity, 
110;  Foorman  v.  Wallace,  75  Cal. 
552;  Evans  v.  McGlassen,  18  la. 
150;  Butterfield  v.  Walsh,  21  Id. 
97;  Rorer  on  Judicial  Sale,  §§866, 
874. 

49  R.  S.  §  532'^ ;  ( Gen'l  Code, 
§11603);  Long  v.  Mulford,  17  O. 
S.  4S4;  Carey  v.  Kemper,  45  O.  S. 
96. 

so  Gen'l  Code,  §11633  (R.  S. 
§5356). 

The  title  of  a  purchaser  at  judi- 
cial sale,  as  a  general  rule,  cannot 
be  impeached  in  equity  for  errors 
or  irregularities  in  the  proceed- 
ings; but  where  a  tract  of  land  not 
in  fact  sold,  and  for  which  no  con- 
sideration was  paid  or  intended  to 
be  paid,  is,  by  mistake,  included  in 
the  report  of  sales,  such  mistake 
may  be  corrected,  in  equity,  as 
against  the  purchaser  or  his  heirs, 
even  after  confirmation  and  deed  in 


§§  74,  75  MERWINE    ON    REAL    ACTIONS.  64 

Sec,  74.     Manner  in  which  a  dormant  judgment  may  be  re- 
vived. 

When  a  judgment,  including  judgments  rendered  by  a  jus- 
tice of  the  peace,  or  mayor,  a  transcript  of  which   has  been 
filed  in  the  court  of  common  pleas  'for  execution,  has  become 
dormant,    or   when    any   finding   for   money   in   any    equitable 
proceedings,    which   in   whole   or   in    part   remains   unpaid,   un- 
der the  order  of  the  court  made  therein,  said  judgment  may 
be  revived,  or  said  finding  may  be  made  subject  to  execution, 
as  judgments  at  law   are,   in  the  same  manner  as  prescribed 
for   reviving   actions  before   judgments,   or  by   action    in   the 
court  in  which  said  judgment  was  rendered,  or  finding  made, 
or    in    which    transcript    of   judgment    may    have    been    filed. 
When  either  party  to  such  dormant  judgment  or  finding,  his 
agent  or  attorney,  makes  affidavit  showing  that  the  adverse 
party  is  a  non-resident  of  the  State,  and  that  such  judgment 
or   finding  remains  unsatisfied  in  whole   or  in   part,   and   the 
amount  owing  thereon,  service  may  be  made  by  publication, 
as  in   other   cases,   but   only   for   such   judgments   or  findings 
in  which   personal   service   has   originally  been   made   on   the 
adverse  party.     If  sufficient  cause  be  not  shown  to  the  con- 
trary,  the   judgment   will   stand  revived,   and   the   finding   be 
subject   to    execution    for  the   amount  which   the    court   finds 
to  be  due  and  unsatisfied  thereon ;  and  the  lien  of  the  judg- 
ment for  the  amount  due  will  be  revived,  and  will  operate 
from  the  time  of  the  entry  of  the   conditional   order  or  the 
filing  of  the  petition.51 

Sec.  75.     The  limitation  as  to  revivor  of  judgment. 

An  action  to  revive  a  judgment  can  only  be  brought  within 
twenty-one  years  from  the  time  it  became  dormant,  unless 
the  party  entitled  to  bring  such  action  was,  at  the  time  the 
judgment  became  dormant,  within  the  age  of  minority,  of  un- 
sound mind,  or  imprisoned,  in  which  case  the  action  may  be 
brought  within  fifteen  years  after  such  disability  has  boen 
removed.52 

pursuance  thereof.     Lites   v.   Wide-  saGen'l     Code,     §11648      ( R.     S. 

ner,  35  0  S.  555.  §5368). 

si  Gen'/  Code,    §11645      (R.     S. 
§6367). 


65  REAL    ESTATE    UNDER    JUDGMENTS.  §§76,77 

Sec.  76.  New  parties  to  judgment  and  revivor  of  judgment 
when  a  party  dies — Judgment  in  circuit  court  remanded 
to  common  pleas  for  execution — How  revived  after  death. 

If  either  or  both  of  the  parties  die  after  judgment  ren- 
dered, and  before  satisfaction  thereof,  their  representatives, 
real  or  personal,  or  both,  as  the  case  may  require,  may  be 
made  parties  to  the  judgment,  and  the  same  may  be  revived 
by  an  action  brought  for  that  purpose ;  or  they  may  be  made 
parties  thereto  in  the  same  manner  as  is  prescribed  for  the 
revival  of  actions  before  judgment;  and  such  judgment  may 
be  rendered  and  exectuion  awarded  as  might  or  should  have 
been  given  or  awarded  against  the  representatives,  real  or 
personal,  or  both,  of  such  deceased  party;  and  where  any 
judgment  or  decree  has  been  rendered  in  the  circuit  court 
of  any  county,  and  a  mandate  has  been  directed  to  the  com- 
mon pleas  court,  to  carry  the  same  into  execution,  and  if 
either  or  both  parties  thereto  die  before  satisfaction  thereof, 
the  same  may  be  revived  in  such  common  pleas  court  in 
conformity  with  this  section.53 

And  the  members  of  a  partnership,  against  which  a  judg- 
ment has  been  rendered  by  its  firm  name,  may  be  made  par- 
ties to  the  judgment  by  action,  and  sureties  to  the  bond  of 
an  executor,  administrator,  guardian,  or  trustee,  may  be  made 
parties  to  a  judgment  thereon  against  the  principal,  by 
action.54 


Sec.  77.     Judgments  against  parties,  and  against  defendants 
at  different  times. 

Judgment  may  be  given  for  or  against  one  or  more  of 
several  plaintiffs,  and  for  or  against  one  or  more  of  several 
defendants ;  and  by  the  judgment  a  court  may  determine  the 
ultimate  rights  of  the  parties  on  either  side,  as  between  them- 
selves, and  grant  to  the  defendant  any  affirmative  relief  to 
which  he  is  entitled ;  and  in  an  action  against  several  de- 
fendants, the  court  may  render  judgment  against  one  or  more 

ssGen'I  Code,    §  1 1649      (R.     S.  For  a  more  extended  discussion  of 

§  5369 ) .  this  subject,  see   1  Bates'  Pleading, 

s^Gen'l  Code,       §§11751       and  Practice  Forms,  etc.,  632  to  640. 

11752    (R.  S.    §§5370    and   5371). 


§§78-80 


MERWINE    ON    REAL    ACTIONS. 


66 


of  them,   leaving   the   action   to   proceed   against   the   others, 
whenever  a  several  judgment  is  proper.55 

Sec.  78.     A  judgment  will  operate  as  a  conveyance,  when. 

When  a  party  against  whom  a  judgment  for  conveyance, 
release,  or  acquittance  is  rendered,  does  not  comply  there- 
with by  the  time  appointed,  such  judgment  will  have  the 
same  operation  and  effect,  and  be  as  available,  as  if  the  con- 
veyance, release,  or  acquittance  had  been  executed  conform- 
ably  to   such   judgment.56 

The  land  must  be  within  the  jurisdiction  of  the  court  in 
order  that  the  decree  may  operate  as  a  conveyance.  If  the 
land  is  outside  of  the  jurisdiction  of  the  court,  the  decree 
can  only  be  enforced  by  attachment.57 


Sec.  79.     How  judgment  entered  against  a  married  woman. 

When  a  married  woman  sues  or  is  sued,  like  proceedings 
may  be  had  and  judgment  rendered  and  enforced  as  if  she 
were  unmarried,  and  her  property  and  estate  will  be  liable 
for  the  judgment  against  her,  but  she  will  be  entitled  to 
the  benefits  of  all  exemptions  to  heads  of  families.58 

Sec.   80.     All  judgments  must  be   entered  by  clerk  in  con- 
formity to  verdict. 

It  is  provided  that  when  a  trial  by  jury  has  been  had, 
judgment  must  be  entered  by  the  clerk  in  conformity  to  the 
verdict,  unless  the  verdict  be  special,  or  the  court  order  the 
cause  to  be  reserved  for  future  argument  or  consideration, 
immediately  after  the  time  allowed  by  law  for  the  filing  of 


ssGen'l  Code,  §§  11583  and  11384 
(R.    S.     §§5311    and    5312).       See 
Smith     v.    Bank,    26     0.    S.     141 
Lampkin   v.   Chisom,   10   0.  S.  451 
Smithers   v.   Rainey,   14  O.   S.   287 
Roby  v.  Ramsberger,  27  0.  S.  674 
Humphries    v.    Huffman.    33    0.    S 
395;  Mead  v.  McGrow,  19  0.  S.  55 
Krug    v.    Bishop,    44    0.     S.    221 
Mason  v.  Alexander,  44  0.  S.  334 
Aueker    v.    Adams,    23    O.    S.    543 
Hempy    v.    Ransom,   33   O.    S.    312 
Carr  v.  Beckett,  1  C.  C.  72;   Osbun 
v.  Bartram,  15  C.  C.  224. 


soGen'l  Code,  §11590  (R.  S. 
§  5318).  See  Shepherd  v.  Ross  Co., 
7  O.  271  (Pt.  1)  ;  Randall  v.  Pryor, 
4  O.  425;  Irwin  v.  Jeffors,  3  0.  S. 
389;  Taylor  v.  Boyd,  3  0.  337, 
Burnley  v.  Stevenson,  24  0.  S. 
474;  Penn  v.  Hayward,  14  O.  S. 
302;  Jelke  v.  Goldsmith,  52  0.  S. 
499. 

"Daniels   v.   Stevens,   19   O.   222. 

seGenl  Code,  §11591  (R.  &. 
§5319). 


67  REAL    ESTATE    UNDER    JUDGMENTS.  §§81-83 

a  motion  for  a  new  trial  if  such  motion  has  not  been  filed; 
if  a  motion  for  a  new  trial  has  been  tiled,  then  such  judg- 
ment must  be  entered  only  when  the  court  has  sustained 
such  verdict  by  the  overruling  of  such  motion  for  a  new  trial, 
and  the  judgment  upon  such  overruling  of  such  motion  will 
then  be  immediately  entered.59 

Sec.  81.     When  the  court  to  order  what  judgment  to  be  en- 
tered on  verdict. 

When  the  verdict  is  special,  or  when  there  is  a  special 
finding  on  a  particular  question  of  fact,  or  when  the  case  is 
reserved,  it  is  the  duty  of  the  court  to  order  what  judgments 
shall  be  entered.00 

Sec.  82.     When  judgment  may  be  entered  against  the  verdict. 

When,  upon  the  statements  in  the  pleadings,  one  party  is 
entitled  by  law  to  judgment  in  his  favor,  the  court  is  re- 
quired to  so  render  judgment,  although  a  verdict  has  been 
found  against  such  party.01 

Sec.  83.     All  judgments  must  be  entered  on  journal. 

All  judgments  and  orders  must  be  entered  on  the  journal 
of  the  court,  and  specify  clearly  the  relief  granted  or  order 
made  in  the  action.02 

In  order  to  create  a  lien  on  the  real  estate  of  the  judgment 
debtor,  the  judgment  must  be  entered  on  the  journal  during 
the  term  at  which  the  judgment  was  taken.03 

The  court  at  all  times  during  the  term,  and  at  any  time 
during  a  subsequent  term,  has  the  power  to  make  its  journal 
speak  the  truth.     If  by  mistake  or  fraud   a  judgment  is  en- 

59  Gen'l     Code,    §11599      (R.     S.  new     trial."       Young     v.     Shellen- 

§5326).      "When   a  general   verdict  barger,  530  O.  S.  291. 

is  returned  by  a  jury,  the   clerk  is  «°  Gen'l     Code,     §  11600      (R.     S. 

authorized  by  this  statute   (§5326)  §5327). 

to   enter   judgment   upon   it,    unless  61  Gen'l     Code,    §11601      (R.      S. 

the  court  order  the  case  to  be   re-  §  5328 ) . 

served  for  future  argument  or  con-  62  Gen'l     Code,    §  11604      ( R.     S. 

sideration;    and    such    judgment    is  §5331). 

regular    and    valid,    though   entered  63  Coe    v.    Erb,    59     O.    S.    259; 

before  the  expiration  of  the  statu-  Wiley  v.  Lewis,  4  X.  P.  212. 
tory  time  for  filing  a  motion  for  a 


§§  84-87  MERWINE    ON    REAL    ACTIONS.  68 

tered,  when  in  fact  no  judgment  was  granted  or  allowed,  the 
court  has  full  power  to  correct  the  record  so  that  it  may 
show  the  reM  action  of  the  court  as  to  the  same.  The  court 
may  do  this  on  its  own  motion  or  on  the  application  of  the 
party  in  interest.04 

Sec.  84.     Complete  record  of  case  to  be  made,  unless  waived. 

The  law  requires  the  clerk  to  make  a  complete  record  of 
every  case  as  soon  as  it  is  finally  determined,  unless  such 
record  or  some  part  thereof,  be  duly  waived.65 

Sec.  85.    When  record  is  to  be  made  and  signed. 

The  clerk  is  required  to  make  up  such  record  in  each  cause 
in  the  vacation  next  after  the  term  at  which  the  same  was 
determined;  and  it  is  made  the  duty  of  the  presiding  judge 
of  the  court,  at  the  next  term  thereafter,  to  subscribe  the 
same.66 

Sec.  86.     Of  what  the  complete  record  shall  consist. 

The  record  will  be  made  up  from  the  petition,  the  process, 
the  return  pleadings  subsequent  thereto,  reports,  verdicts, 
orders,  judgments,  and  all  material  acts  and  proceedings  of 
the  court;  but  if  items  of  an  account,  or  copies  of  papers 
attached  to  the  pleadings,  are  voluminous,  the  court  may  or- 
der the  record  to  be  made  by  abbreviating  the  same  or  in- 
serting a  pertinent  description  thereof,  or  by  omitting  them 
entirely.  The  bill  of  exceptions  must  be  filed  with  the  plead- 
ings and  papers,  but  not  recorded,  unless  the  court  for  good 
reason  so  orders ;  and  evidence  must  not  be  recorded.67 

Sec.  87.     Court  to  cause  record  to  be  completed  in  certain 
cases. 

When  the  judicial  acts  or  court  proceedings  in  any  court 
have  not  been  regularly  brought  up  and  recorded  by  the  clerk 
thereof,  it  is  made  the  duty  of  the  court  to  cause  the  same  to  be 
made  up  and  recorded  within  such  time  as  it  may  direct;  and 

64Krusella  v.  DeCamp,  15   C.  C.           ««  Gen'l      Code,    §11606      (R.     S. 

494.  §5333). 

es  Gen'l     Code,    §11605  (R.     S.           <"  Gen'l     Code,     §11607      <R.    S. 

§5332).  §5334). 


69  REAL   ESTATE    UNDER    JUDGMENTS.  §§  88-90 

when  they  are  made  up,  and  upon  examination  found  to  be  cor- 
rect, the  presiding  judge  must  subscribe  the  same.08 

Sec.  88.     What  index  is  required  for  judgments. 

The  clerk  is  required  to  keep  an  index,  direct  and  reverse, 
of  all  judgments,  by  the  names  of  parties,  alphabetically  ar- 
ranged, showing  in  separate  columns  the  name  of  the  judg- 
ment debtor,  the  name  of  the  judgment  creditor,  the  amount 
of  the  judgment,  and  the  year  and  term  when  it  was  ren- 
dered, the  page  of  the  journal  on  which  it  is  entered,  the 
volume  and  the  page  of  the  final  record,  the  number  of  the 
suit,  the  number  and  the  time  of  issue  of  the  execution,  and 
satisfaction  thereof,  when  it  appears  to  have  been  made."9 

Sec.  89.     The  precipe  for  an  execution. 

Most  clerks  of  the  court  have  blank  forms  for  precipe 
which  can  be  filled  by  the  attorney ;  but  no  particular  form 
need  be  followed.  It  should  request  the  clerk  to  issue  an 
execution  on  the  judgment,  directed  to  the  sheriff  and  re- 
turnable according  to  law. 


'& 


Sec.  90.     The  execution;  nature  and  kinds  thereof. 

The  statutory  definition  of  an  execution  is  a  process  of 
the  court,  issued  by  the  clerk,  and  directed  to  the  sheriff 
of  the  county ;  and  executions  may  be  issued  to  the  sheriffs 
of  different  counties  at  the  same  time.70 

It  has  been  defined  to  be  a  command  or  precept  to  the 
sheriff  or  ministerial  officer,  directing  him  to  execute  the 
judgment  of  the  court.  It  is  the  command  of  the  court  ad- 
dressed to  the  ministerial  officer  in  writing  and  under  the 
seal  of  the  court,  containing  with  more  certainty  the  com- 
mand of  the  court,  and  expressed  with  more  solemnity  than 
if  uttered  verbally  by  the  court.  It  is  nevertheless  the  cora- 
•mand  of  the  court  to  the  officer  to  proceed  and  execute  the 
judgment  of  the  court.71 

7i  Kelly  v.  Vincent.  8  O.  S.  420; 
Lessee  of  Darby  v.  (arson.  0  (). 
149.  An  actual  delivery  to  the 
sheriff  is  not  necessary.  But  it 
must  be  actually  or  constructively 
delivered  to  him.  If  within  the 
cut  ion.  time  limit,  it  mav  be  enclosed  in  a 


cs  Gen'l 

Code, 

§  11609 

(R. 

S 

§  53.35 ) . 

bo  Gen'l 

Code, 

§  11613 

(R. 

s, 

§  5339  i . 

io  Gen'l 

Code. 

§  1 1653 

(R. 

s 

§5372). 

See  No. 

4  for  forn 

I  of 

exe 

§91 


MERWINE    ON    REAL    ACTIONS. 


70 


Sec.  91.     The  kinds  of  executions. 

The  law  in  Ohio  is  very  simple  as  to  the  kinds  of  execu- 
tions. It  does  not  deal  with  any  of  the  old  writs  of  execution 
whereby  the  lands  of  a  debtor  were  seized  for  the  payment 
of  a  debt.  We  do  not  have  one  form  of  a  writ  under  which 
to  seize  goods  and  chattels  and  another  form  under  which 
to  seize  and  sell  the  real  estate  of  a  judgment  debtor.  Here 
we  have  usually  one  form  of  the  writ  which  commands  the 
sheriff  to  levy  on  the  personal  property  and  sell  the  same 
in  satisfaction  of  the  judgment,  and  if  no  personal  property 
can  be  found,  or  if  enough  personal  property  cannot  be  seized 
and  sold  to  satisfy  the  judgment,  then  that  the  real  estate 
of  the  judgment  debtor  be  seized  and  sold.  If  after  a  levy 
has  been  made  upon  the  real  estate,  and  the  writ  has  been 
returned  without  a  sale  of  it,  the  writ  is  aided  by  what  is 
technically  known  as  a  vendi  exponas.72 

But  now  the  kinds  of  execution  in  this  State  are  designated 
by  the  statute. 

Executions  are  of  three  kinds:  (a)  Against  the  property 
of  the  judgment  debtor,  including  orders  of  sale;  (b)  against 
the  person  of  the  judgment  debtor;  (c)  for  the  delivery  of 
the  possession  of  real  property,  including  real  property  sold 
under  orders  of  sale.  The  writ  must  contain  a  specific  de- 
scription of  the  property,  and  a  command  to  the  sheriff  to 
deliver  the  property  to  the  person  entitled  thereto;  the  writ 
may   also    require   him   to   make   the    damages    recovered   for 


letter  properly  directed,  and  mailed 
to  the  sheriff  within  the  time 
limit.  It  may  he  delivered  by  the 
clerk  to  the  plaintiff  or  his  attor- 
ney to  be  delivered  to  the  sheriff. 
Kelly  v.  Vincent.  8  O.  8.  420.  A 
probate  court  cannot,  under 
§5449,  (Gen'l  Code  §11746),  is- 
sue an  execution  on  a  judg- 
ment rendered  in  the  court  of 
common  plea-.  Milson  v.  Rouk,  43 
O.  S.  422.  An  execution  can  issue 
only  out  of  the  court  where  the 
judgment  was  rendered.  Mils  >n  V. 
Rouk,  57   O.  S.   422. 

72  See    No.    1    to    K?    inclusive    f  >  V 
forms   and    procedure.      In   replevin 


the  writ  was  retvrno  hahendo;  in 
detinue  a  distringas  or  a  scire  fa- 
cias; where  the  debtor  might  be 
imprisoned  the  writ  was  called  a 
capias  ad  satisfaciendum  ;  where 
the  goods  and  chattels,  and  also 
the  rents  and  profits  of  the  lands 
were  sought,  it  was  called  a  levari 
facias;  and  where  the  goods  and 
chattels  and  a  part  of  the  land 
were  seized  under  a  writ,  it  was 
called  a  writ  of  elegit.  Where  the 
possession  of  lands  were  to  be  re- 
covered the  writ  was  habere  facias 
aeisei iin iii.  See  Freeman  on  Exe- 
cutions, §3  c/  seq. 


71  REAL    ESTATE    UNDER    JUDGMENTS.  §  92 

withholding  the  possession,  and  cost  or  costs  alone,  out  of 
the  property  of  the  person  who  so  withholds  the  possession.73 
In  an  attachment  proceeding  when  a  judgment  is  rendered 
therein,  it  must  be  satisfied  out  of  the  property  seized,  and 
if  there  is  not  property  sufficient  for  that  purpose,  execu- 
tion may  issue  as  in  other  cases.  In  speaking  of  the  sale  of 
property  under  such  proceeding,  it  was  said  that  the  order 
to  sell  attached  property,  after  judgment,  is  therefore  an 
execution  of  the  first  kind  named,  and  differs  from  a  fi.  fa. 
execution  only  in  this,  that  it  is  a  command  to  sell  the  prop- 
erty in  the  officer's  hands  under  the  attachment,  while  an 
execution  in  the  usual  form  command  a  levy  and  sale  of  the 
same,  or  any  other  property,  to  satisfv  the  same  judgment. 
The  latter  form  of  execution  is  broader,  and  embraces  the 
terms  and  office  of  the  former.  The  greater  includes  the  less. 
Under  the  order  of  sale  the  same  advertisement,  sale  and 
return  is  made  as  under  the  execution.74 

Sec.  92.    What  property  subject  to  levy  and  sale. 

Lands  and  tenements,  including  vested  interests  therein, 
and  permanent  leasehold  estates,  renewable  forever,  and 
goods  and  chattels,  not  exempt  by  law,  are  made  subject  to 
the  payment  of  debts,  and  are  liable  to  be  taken  on  execu- 
tion and   sold  as  hereinafter  provided.75 

Lands  and  tenements  held  in  trust  cannot  be  reached  by 
execution  against  a  trustee ;  for  trust  estates  are  never  liable 
to  judgments  against  the  trustee.70 

The  real  property  of  a  judgment  debtor,  exempt  to  him 
from  levy  and  sale  in  lieu  of  a  homestead  under  the  statute,77 
when  selected  and  held  by  the  judgment  debtor  as  so  exempt 
becomes  his  absolute  propertv.  rnpd  if  ho  sells  it.  the  prop- 
erty is  not  subject  to  any  judgment  lien  obtained  against  the 
grantor   prior   to    such    conveyance    and    it    is   not    subject    to 

■"Oen'l       Code,       §§11653       a~d  S 53741  :     see    also     §5555.     (Gen'l 

11654     (R.    S.    §§5372    and    5373).  Code  S  1 1855) ,  and  Xo.  56  for  form 

The    right    to    ;ssue    an    execution  of    jndgment    and    execution    in    at- 

does    not    exclude    a    report    to    the  tnchr"ent. 

action   of   debt.     Headlev  v.  Bobey.  ™  Wright   v.   Franklin.   50    O.    S. 

6  0.522.  oo.    Manley    v.    Hunt.    1    0.    257; 

"*  By  Johnson,  J.,  in  Liebman  v.  Br+ler  t.  Brown,  5  0.  S.  215. 

Ashbacker,  36  O.  S.  94.  "Gen'l     Code,    §11738      (R.     S. 

75Gen'l     Code,    §11655      (R.     S.  S5441). 


§92 


MERWINE   ON    REAL   ACTIONS. 


72 


seizure  and  sale  upon  execution  in  satisfaction  of  such  judg- 
ment.78 

As  to  whether  it  is  safe  for  the  officer  to  make  the  levy, 
ownership  is  the  true  test.  Coin  can  be  taken  from  the  judg- 
ment debtor  if  it  can  be  found  by  the  officer  holding  the  writ 
of  execution.79 

Equitable  interests  cannot  be  reached  by  levy  under  the 
ordinary  execution.  The  proper  method  of  procedure  in  such 
cases  is  by  a  proceeding  in  equity.80 

While  an  execution  may  issue  against  property  incumbered 
with  prior  liens  and  the  property  sold  thereunder,  subject  to 
such  liens,  yet  the  better  plan  is  to  file  a  petition  on  the  chan- 
cery side  of  the  common  pleas  court,  alleging  the  judgment 
and  the  various  liens,  and  making  every  lien  holder  a  party 
defendant  and  asking  that  they  each  be  required  to  come  into 
the  case  and  set  forth  the  nature  and  amount  of  their  several 
liens  and  praying  that  the  real  estate  of  the  judgment  debtor 
be  sold,  free  of  the  liens,  and  the  proceeds  of  such  sale 
be  applied  to  the  payment  of  the  various  liens  in  the  order 
of  their  priority.  The  court  in  such  instances  orders  the  real 
estate  sold  free  of  the  claims  and  liens  of  the  parties  to  the 
action.  The  liens  and  claims  of  the  parties  are  then  transferred 
to  the  fund  arising  from  the  sale  of  such  real  estate.81 

As  it  will  not  be  possible  to  discuss  the  subject  further 
here,  there  will  be  found  in  the  note  below,  cases  under  the 
various  subjects  connected  with  the  execution.82 


78  Genell  v.  Herons,  70  O.  S.  309 ; 
but  see  Roig  v.  Schultz,  42  0.  S. 
165;  McComb  v.  Thompson,  42  O. 
S.   139. 

™  Reese  v.  Bader,  31  W.  L.  B. 
112. 

so  Carty  v.  Fenstermacher,  14  O. 
S.  459;  Baird  v.  Kentloud,  8  O. 
24;  Scott  v.  Douglass,  7  0.  (Pt.  1) 
228;  Myers  v.  Hewett,  16  0.  449; 
Loring  v.  Melendy,  11  0.  356; 
Gibson  v.  Chillicothe,   11   O.   321. 

8i  See  Nos.  23  to  47  inclusive  for 
form  of  the  procedure  in  such  cases. 

H-  As  to  levy  of  property  mort- 
gaged, see  Commercial  Bank  v. 
Western,  etc.,    11   O.  444;    Baird  v. 


Kirtloud,  8  O.  21 ;  Martin  v.  Alter, 
42  O.  S.  94;  Phelps  v.  Butler,  2  O. 
224;  Moore  v.  Rettenhouse,  15  0. 
S.  310;  Seymour  v.  King,  11  0. 
342.  Remedy  is  in  equity.  See 
Lane  v.  Baughman,  17  O.  S.  642; 
Coe  v.  Piqua,  etc.,  10  0.  S.  403; 
Bank  v.  Tennessee,  62  0.  S.  564; 
Coe  v.  Peacock,  14  0.  S.  190;  Coe 
v.  Knox,  etc.,  10  0.  S.  412.  As  to 
levy  on  property  under  bailment, 
see  Gibson  v.  Chillicothe,  etc.,  11 
O.  S.  311.  As  to  levy  before  deed, 
see  Gorrell  v.  Kelsy,  40  0.  S.  117; 
Haynes  v.  Baker,  5  0.  S.  253.  As 
to  levy  on  chattels  sold  condition- 
ally, see   Sage  v.   Sleutze,  23   0.   S. 


73 


REAL   ESTATE    UNDER    JUDGMENTS. 


$93 


Sec.  93.     Partnership  property  levied  on,  how. 

Where  a  levy  was  made  on  the  partnership  property  by  a 
judgment  creditor  and  a  petition  was  filed  in  the  court  ask- 
ing that  the  partnership  property  be  sold,  or  so  much  as 
might  be  necessary  to  satisfy  the  execution  lien,  it  was  said : 
"It  is  clear,  we  think,  upon  principle  and  upon  authority,  that 
the  levying  creditor,  in  the  case  at  bar,  having  acquired  a  lien 
by  the  seizure,  in  execution,  of  his  debtors  interest  in  the 
tangible  property  of  the  firm,  might  properly  file  his  peti- 
tion against  the  other  partner  for  an  account  of  the  partner- 
ship, and  the  ascertainment  of  his  debtor's  interest  in  the 
property  seized,  before  sale  upon  execution." 

The  rule,  in  Ohio  at  least,  seems  therefore  to  be  that  upon 
such  levy  being  made,  it  is  the  right  of  a  creditor  and  of  the 
other  co-partners,  should  either  desire  it,  to  invoke  the  equity 
powers  of  the  court  to  adjust  the  partnership  business,  and  to  stay 
the  proceedings  under  the  execution,  till  the  beneficial  interest  of 
the  debtor  partner  in  the  goods  seized  has  been  ascertained. 
But  that  if  the  creditor  does  not  so  elect,  and  no  such  steps  are 
taken  by  the  other  partners,  the  officer  executing  the  writ  must 
sell  the  apparent  interest  of  the  debtor  in  the  property  levied  on, 
and  upon  such  sale,  redeliver  the  same  to  the  other  partners  and 
the  purchaser,  who  will  then  be  owners  in  common,  subject  to  a 
lien  in  favor  of  the  other  partners  and  the  joint  creditors,  upon 
the  interest  of  the  debtor  partner  in  the  hands  of  the  purchaser 
for  any  balance  due  upon  final  adjustment  of  the  partnership 
account.83 


1;  Albright  v.  Meredith,  58  0.  S. 
194.  As  to  levy  on  homestead  set 
off  as  exempt,  see  Roig  v.  Schultz, 
42  O.  S.  165;  McComb  v.  Thomp- 
son, 42  0.  S.  139;  Genell  v.  Hirons, 
70  O.  S.  309.  As  to  levy  on  prop- 
erty fraudulently  conveyed,  see  Mc- 
Vey  v.  Ritenour,  40  O.  S.  107; 
Westerman  v.  Westerman,  25  0.  S. 
500;  Same  v.  Same,  9  Am.  L.  R. 
690.  As  to  levy  on  vendor's  inter- 
est, see  farker  v.  Miller,  9  0.  108. 
iScribner  v.  Lockwood,  9  0.  184; 
Paine  v.  Mooreland,  15  O.  435; 
Miners  v.  Morse,  15  O.  568;  Cog- 
shall   v.  Marine,  etc.,  63   0.   S.  98; 


In  re  Worstall,  6  X.  P.  526.  As  to 
the  property  under  attachment,  see 
State  v.  Anderson,  17  W.  L.  B. 
391.  As  to  property  previously 
aliened,  see  Sclmler  v.  Miller,  45 
0.  S.  325.  As  to  officer's  discre- 
tion as  to  amount  of  property 
to  levy  on,  see  Pugh  v.  Calloway. 
10  0.  :S.  494. 

£3  Nixon,  etc.  v.  Nash,  etc.,  12 
O.  S.  652.  A  bill  can  bo  filed  by  a 
partner  against  the  separate  cred- 
itor of  a  co-partner  to  restrain  a 
sale  upon  execution  until  an  ac- 
count can  be  taken  of  the  partner- 
ship  and   the   beneficial    interest  of 


§94 


MERWINE   ON    REAL   ACTIONS. 


74 


Firm  creditors  have  priority  over  the  creditors  of  the  individ- 
ual members  of  the  firm  in  the  partnership  assets.84 

An  execution  issued  on  a  judgment  against  a  partnership  firm 
by  its  firm  name,  operates  only  on  the  partnership  property.83 

Sec.  94.     When  liens  of  a  judgment  attach  to  lands. 

Such  lands  and  tenements,  within  the  county  where  the  judg- 
ment is  entered,  are  bound  for  the  satisfaction  thereof  from  the 
first  day  of  the  term  of  court  at  which  judgment  is  rendered ;  but 
judgments  by  confession  and  judgments  rendered,  at  the  same 
term  of  which  action  is  commenced,  bind  such  lands  only  from 
the  day  on  which  such  judgments  are  rendered ;  and  all  other 
lands  are  bound  from  the  time  they  are  seized  in  execution.80 


the  debtor  partner  ascertained. 
Place  v.  Sweitzer,  16  O.  142.  A 
creditor  has  an  equal  right  also  to 
appeal  to  a  court  of  chancery  to 
have  his  rights  determined.  Sut- 
cliffe  v.  Dorman,   18  0.   181. 

si  Grosvenor  v.  Austin,  6  0.  103; 
Smead  v.  Lacey,  1  Disney,  139; 
Sigler  v.  Knox,  etc.,  8  0.  S.  511. 

ssGen'l  Code,  §  110(34  (R.  S. 
§5381i. 

seGen'l  Code,  §11056  ( R.  S. 
§5375).  Judgment  liens  are  of 
very  ancient  origin.  Dyer,  373; 
Carthen,  129;  1  Lord  Raymond, 
53;  Chitty  on  Descents,  330;  Lau- 
rence  v.  Belger,  31  0.  S.  175.  At 
common  law  judgments  related  to 
the  first  day  of  the  term,  although 
signed  after,  and  where,  by  the 
Statute  of  Westminster.  2,  lands 
might  be  taken,  the  plaintiff  was 
entitled  to  execution  of  whatever 
the  defendant  was  seized  of  the 
first  day  cf  the  term.  Mack  v. 
Schlothman,  7  Am.  L.  Rec.  662. 
Before  the  adoption  of  the  Code, 
judgments  and  decrees  were  liens 
by  statutory  enactment.  Conrad  v. 
Everick,  50  0.  S.  475.  The  lien, 
validity  and  priority  of  judgments 
are  creatures  of  the  statute.  Cor- 
win  v.  Benham,  2  O.  S.  36;  Tucker 
V.  Shade,  25  0.  S.  355.  And  equity 
cannot  cure  any  defects  in  the  lien. 


Beggs  v.  Vandever,  W.  325.  If  the 
judgment  was  ever  in  force  and  is 
lost,  equity  cannot  restore  it.  Bank 
v.  Turpin,  3  0.  514.  The  judg- 
ment lien  is  good  as  against  a  sub- 
sequent purchaser.  Mack  v. 
Schlothman,  7  Am.  L.  Rec.  665. 
The  lien  does  not  give  any  prop- 
erty right  in  the  land — only  the 
power  to  levy  on  it.  Xeff  v.  Cox, 
5  X.  P.  413.  Xo  execution  can  is- 
sue unless  judgment  is  a  valid  one. 
Ibid.  And,  in  order  for  a  judgment 
to  be  a  lien  on  a  debtor's  lands,  it 
is  necessary  that  it  should  be  capa- 
ble of  collection  by  execution 
against  the  property  of  the  debtor. 
Ibid.  Decrees  to  create  a  lien  must 
be  for  payment  of  money  only. 
Myers  v.  Hewett,  16  0.  449.  Many 
decrees  create  no  lien,  such  as  in- 
junctions to  cancel  and  set  aside 
fraudulent  conveyances.  Ibid.  A 
decree  in  foreclosure  may  allow  an 
execution  to  be  issued  under  it,  and 
yet  create  no  lien.  Myers  v.  Hew- 
itt. 10  0.  449.  A  divorce  for  the 
wife  on  account  of  the  aggression 
of  the  husband  carries  with  it  an 
alimony  judgment  out  of  the  hus- 
band's real  and  personal  property. 
Coffman  v.  Fumey,  05  O.  S.  01. 
For  nature  and  effect  of  judgment 
against  sellers  of  intoxicating  liq- 
uors    and     gamblers,     see     R.     S. 


75 


REAL   ESTATE    UNDER   JUDGMENTS. 


§94 


Judgments  rendered  against  a  railway  corporation  under  a 
foreclosure  of  a  mortgage  in  the  Federal  courts  become  a  lien 
on  the  lands  of  the  railway  for  roadway,  right  of  way,  depot, 
etc.,87  and  this  lien  attaches  either  from  the  first  day  of  the  term 
at  which  judgment  was  rendered,  or  from  the  day  of  its  rendi- 
tion. And  the  judgment  will  attach  from  the  first  day  of  the 
term,  though  there  is  no  session  of  the  court.88 

To  be  precise,  the  lien  attaches  on  the  hour  fixed  for  the  com- 
mencement of  the  term.  In  no  case  can  the  judgment  antedate 
the  term.89 

All  judgment  liens  are  coextensive  with  the  jurisdiction  of  the 
court  rendering  the  same.90  And  the  lien  on  a  judgment  rendered 
by  the  Superior  Court  extends  to  all  of  the  lands  in  Hamilton 
County.91 

In  order  to  create  a  lien  on  the  real  estate  of  the  judgment 
debtor,  the  judgment  must  not  only  be  announced  by  the  court 
during  the  term,  but  the  entry  therefor  must  also  be  entered  upon 
the  journal  during  the  term.92 

The  lien  provided  by  the  statute  is  but  an  incident  of  the 
judgment.  Under  the  common  law  it  was  made  to  relate  back 
to  the  first  day  of  the  term,  and  this  relating  back  to  the  first 
day  of  the  term  for  the  lien  was  in  no  sense  the  antedating  of 
the  judgment.93 

It  is  to  be  observed  that  the  statute  provides  that  the  lands  of 
the  judgment  debtor  outside  of  the  county  are  bound  by  the  judg- 


§§4275,  4273;  (Gen'l  Code.  §§5971 
and  59f>9 )  ;  Trout  v.  Marvin,  G2 
0.  S.  132;  Bellinger  v.  Griffith,  23 
O.  S.  619;  Bender  v.  Finkbone,  25 
O.  S.  103;  Hark  v.  Corlett,  1 
Cleve.  L.  Rep.  92.  A  judgment  in 
the  Circuit  Court  of  the  United 
States  carries  with  it  same  lien  as 
a  judgment  in  the  State  court. 
Lawrence  v.  Belger.  31  0.  S.  175; 
Sellers  v.  Corwin,  5   0.  408. 

»~  Stewart  v.  Railway,  53  0.  S. 
151. 

ss  Davis  v.  Messenger,  17  O.  S. 
231. 

89  Loomis  v.  Building,  etc.,  37  0. 
S.  394;  Follet  v.  Hall,  10  O.  111. 
It  cannot  be  presumed  that  judg- 
ments   were   intended   to   attach   as 


liens  before  the  term  commenced. 
Ibid.  As  to  effect  of  a  nunc  pro 
tunc  order,  see  Mathers  v.  (  incin- 
nati,  3  C.  C.  2S4.  A  judgment  lien 
comes  into  being  on  the  date  of  the 
rendition  of  the  judgment.  Apple- 
by v.  Mullaney,  7  X.  P.  120;  Davis 
v.  Messenger,   17  0.  S.  231. 

oo  Roads  v.  Symmes,    1    0.  281. 

oi  Goodman  v.  McCall,  2  C.  S.  C. 
R.    159. 

02  Coe  v.  Erb,  59  0.  S.  259.  The 
requirement  that  all  judgments 
must  be  entered  on  the  journal 
carries  the  implication  that  until 
that  is  done,  the  judgment  is  in- 
choate only.     Ibid. 

93«homds  v.  Allison,  5  X.  P.  54. 


§  95  MERWINE   ON    REAL   ACTIONS.  76 

ment  lien  only  from  the  time  they  are  seized  under  an  execution. 
Provision  is  made  for  the  keeping,  by  each  of  the  sheriffs  in 
each  of  the  counties  of  the  State,  of  what  is  known  as  a  foreign 
execution  docket.  In  this  docket  the  sheriff  is  required,  on  the 
receipt  by  him  of  any  execution,  order  of  sale  or  other  process 
issuing  from  any  court  of  any  county  of  the  State,  other  than 
that  in  which  he  resides,  to  make  an  entry  of  the  sale  of  such 
writ,  when  received  by  him,  from  what  court  and  county  issued, 
the  date  and  amount  of  such  judgment  or  decree,  and  such  entry 
so  made  shall  be  notice  to  subsequent  purchasers  of  the  matters 
herein  contained.94 

By  force  of  the  sheriff's  entry  of  his  proceedings  on  his  docket, 
as  required  by  this  statute,  it  is  notice  to  the  world  of  the  lien, 
and  the  sheriff  need  not  go  on  the  land  to  make  the  levy.95 

A  levy  made  by  the  sheriff  under  such  foreign  execution  be- 
comes a  lien  upon  the  date  of  the  levy  and  the  entry  in  such 
docket  and  the  lien  will  continue  for  a  period  of  five  years  there- 
after, and  retain  its  priority,  even  though  such  sheriff  return  the 
execution  without  further  proceedings  by  order  of  the  judgment 
creditor,  etc.96 

It  is  a  settled  law  in  Ohio  that  a  judgment  lien  does  not  attach 
to  after  acquired  lands  in  the  absence  of  a  levy  thereon.97 

Such  lien  dates  from  the  levy  and  not  from  the  revivor  of  the 
judgment.    Ibid. 

Sec.  95.  Lien  of  judgment  of  Supreme  Court — Lien  of  judg- 
ment of  the  common  pleas  court  in  cases  removed  to 
Supreme  Court. 

A  judgment  of  the  Supreme  Court,  for  money,  binds  the  lands 
and  tenements  of  the  debtor,  within  the  county  in  which  the  suit 
originated,  from  the  first  day  of  the  term  at  which  the  judgment 
is  entered,  and  all  other  lands  of  the  debtor,  from  the  time  they 
are  seized  in  execution ;  but  the  lien  of  a  judgment  of  the  com- 
mon pleas  court,  in  an  action  which  is  appealed  by  the  judgment 
debtor   to   the    circuit    court,    and    is    thence    removed    into   the 

o'Gen'l      Code,      §  2837      (R.      S.  his  own  office  and  not  even  go  with- 

S.  §  1212).  in    view    of    the    land."      Gwynn    on 

95  Morgan  v.  Kinney,  38  O.  S.  613.  Sheriffs,  308. 

"No    entry    by    an    officer    on    real  so  Smith  field  v.  Wheeling,  etc.,  11 

•  state   is   necessary   to   constitute   a  C.  C.  412;  see  also  55  O.  S.  233. 

levy.      The    officer    may    remain    in  o?  Smith    v.    Hogg,    52    O.   S.   530. 


77 


REAL    ESTATE    UNDER    .JUDGMENTS. 


§§96,97 


Supreme  Court  is  not  thereby  divested  or  vacated,  but  continues 
till  the  final  determination  of  the  action  in  the  Supreme  Court.98 

Sec.  96.     Lien  of  transcripts  of  justices  and  mayors  by  filing 
of  transcripts  with  the  clerk  of  the  court  of  common  pleas. 

The  party  in  whose  favor  a  judgment  is  rendered  by  a  justice 
of  the  peace  or  mayor  of  a  municipal  corporation,  may,  at  any 
time  after  judgment  is  rendered,  if  the  same  be  not  appealed  or 
stayed,  file  in  the  office  of  the  clerk  of  common  pleas  court  of 
the  county  in  which  the  judgment  was  rendered,  a  transcript 
thereof,  having  certified  therein  the  amount,  if  any,  paid  thereon ; 
and  thereupon  it  is  made  the  duty  of  the  clerk  to  enter  the  case 
upon  the  execution  docket,  together  with  the  amount  of  the 
judgment,  and  the  time  of  filing  the  transcript ;  but  if,  within 
ten  days  after  rendition  of  the  judgment,  the  judgment  debtor 
pay  the  same,  or  give  bail  for  stay  of  execution,  the  justice  or 
mayor  is  required  forthwith  to  certify  that  fact  to  the  clerk 
of  the  court  of  common  pleas,  whose  duty  it  is  to  enter  a  mem- 
orandum thereof  upon  the  execution  docket,  and  the  cost  of  the 
transcript,  the  filing  thereof,  and  of  the  entry  on  the  docket 
must  be  paid  by  the  party  who  files  the  transcript,  and  taxed  as 
increased  costs,  unless  the  judgment  debtor  pay  the  same,  give 
bail  for  stay  of  execution,  or  appeals  from  the  judgment  ren- 
dered, within  ten  days  after  the  rendition  of  the  judgment." 

Sec.  97.     The  lien  of  such  judgment. 

Such  judgment,  if  the  transcript  be  filed  in  term  time,  will 
be  a  lien  on  the  real  estate  of  the  judgment  debtor  within  the 


ss  Gen'l  Code,  §11657  (R.  S. 
§5376).  For  decision  under  §421 
(Gen'l  Code,  §1512),  of  the  code, 
see  Kilbrith  v.  Diss,  24  O.  S. 
379;  Tucker  v.  Shade,  25  O.  S. 
358;  under  the  act  of  1816,  see 
Riddle  v.  Bryan,  5  O.  51 ;  undet 
the  act  of  1820  and  1822,  McCor- 
mick  v.  Alexander,  2  0.  66;  undei 
the  act  of  1824,  Towner  v.  Wells, 
8  O.  136;  under  the  act  of  1831, 
Northern,  etc.,  v.  Roosa,  13  0.  335; 
affirmance  of  original  judgment 
does  not  relate;  Fulton  v.  Hooker, 
7  W.  L.  B.  48.  "A  mortgage  does 
not  obtain  priority  over  an  ante- 
cedent   judgment    by    virtue    of    a 


subsequent  void  judgment  of  rever- 
sal by  the  intermediate  court,  which 
reversal  is  afterwards  reversed  and 
the  original  judgment  affirmed  by 
the  supreme  court."  Maxwell  v. 
Holmes,   1   N.   P.  N.   S.    13. 

as  Gen'l  Code,  §11659  (R.  S. 
§  5377 )  ;  McComb  v.  Thompson,  42 
O.  S.  139.  A  transcript  filed  in  the 
common  pleas  court  from  a  judg- 
ment taken  before  a  justice  of  the 
peace  has  equal  priority  with  a 
judgment  of  the  common  pleas, 
taken  and  entered  during  the  term. 
Raugh,  etc.,  v.  Ackswitch,  36  W.  L. 
B.  302,  affirmed  in  59  C.  S.  483. 


§§98,99  MERWINE   ON    REAL   ACTIONS.  78 

county  from  the  day  such  transcript  is  filed ;  and  if  filed  in  vaca- 
tion, the  judgment,  as  against  the  debtor,  will  be  a  lien  from 
the  day  it  is  filed,  but  as  against  other  transcripts  filed  in  vaca- 
tion, and  judgments  rendered  at  the  next  term  of  the  court,  it 
will  be  a  lien  only  from  the  first  day  of  the  next  term.1 

This  provision  of  the  statute  is  meant  to  give  a  lien  on  such 
real  estate  of  the  judgment  debtor  as  is  subject  to  levy  and  seizure 
on  execution.2 

In  an  action  to  adjust  liens,  it  was  held  that  the  lien  on  tran- 
script from  a  justice  during  vacation  should  precede  a  mortgage 
filed  for  record  during  the  next  term,  and  this  mortgage  should 
precede  a  judgment  against  the  debtor  at  the  next  term  of  the 
court.3 

Sec.  98.  Executions  upon  transcripts  of  judgments  of  justices 
filed  by  the  clerk  of  the  courts  of  common  pleas,  and  sales 
thereunder. 

Execution  may  be  issued  on  such  judgment  at  any  time  after 
the  filing  of  the  transcript,  as  if  the  judgment  had  been  rendered 
in  court ;  but  the  lien  will  remain  as  provided  in  the  preceding 
section.4 

"With  respect  to  the  issuance  of  an  execution  on  the  judgments 
of  such  transcripts,  and  the  return  thereof,  they  are  placed  upon 
the  same  footing  with  those  issued  upon  judgments  taken  in 
the  common  pleas  court.5 

Sec.  99.  When  a  judgment  execution  becomes  dormant  and 
ceases  to  be  a  lien. 

If  execution  on  a  judgment  rendered  in  any  court  of  record  in 
this  State,  or  a  transcript  of  which  has  been  filed  as  provided 
in  the  statute,  section  5372  (Gen'l  Code,  §  11653),  for  filing  of 
transcripts  of  justices  and  mayors  with  the  clerk  of  the  court  of 
common  pleas,  be  not  sued  out  within  five  years  from  the  date  of 
the  judgment,  or  if  five  years  intervene  between  the  date  of  the 
last  execution  issued  on  such  judgment  and  the  time  of  suing  out 
another  execution  thereon,  such  judgment  then  becomes  dormant 

i  Gen'l      Code,      §11661       (R.      S.  «  Gen'l     Code,      §11662      (R.     !S. 

§5378).  §5379). 

2  Genell   v.  Hirons,  70  0.  S.   300.  s  Rauh    v.    Aknovitch,    59    O.    S. 

sBabbett,  etc.   v.   Morgan,   31    0.  485. 
S.  273. 


79 


REAL   ESTATE   UNDER    JUDGMENTS. 


§100 


and  ceases  to  operate  as  a  Hen  upon  the  estate  of  the  judgment 
debtor.0 

It  was  held  that  the  lien  of  a  judgment,  given  by  section  five 
thousand  three  hundred  and  seventy-five,  and  such  as  are  created 
by  the  levy  of  an  execution,  ar^  of  no  avail  as  against  a  pur- 
chaser, after  the  judgment  becomes  dormant  before  it  is  revived.7 

A  decree  and  an  order  of  sale  of  real  estate  never  becomes 
dormant.  While  the  parties  to  the  decree  live,  the  case,  for  the 
purpose  of  the  decree,  is  a  lis  pendens,  though  under  the  code 
practice,  the  clerk  is  directed  to  leave  it  off  the  trial  docket,8  It 
is  only  money  judgments  that  become  dormant.9 

This  work  forbids  further  discussion  of  the  subject  of  dor- 
mant judgments  and  a  revivor  thereof.  The  practitioner  will 
find  a  careful  discussion  thereof  in  the  works  on  pleading  and 
court  procedure.30 


Sec.  100.  The  writ  of  execution — Its  command,  and  how  sales 
made  thereunder — Execution  operates  against  a  partner- 
ship, how. 

The  writ  of  execution  against  the  property  of  a  judgment 
debtor  issuing  from  any  court  of  record,  must  command  the 
officer  to  whom  it  is  directed,  that  of  the  goods  and  chattels  of 
the  debtor  he  cause  to  be  made  the  money  specified  in  the 
writ,  and  for  want  of  goods  and  chattels,  he  shall  cause  the 
lands  and  tenements  of  said  debtor  to  be  sold  for  cash.  But 
if  the  court  rendering  the  judgment  or  decree  so  order,  real 
estate  may  be  sold  under  writ  of  execution,  on  the  following 
terms:  One-third  cash  on  the  day  of  sale,  one-third  in  one 
year,  one-third  in  two  years  thereafter,  with  interest   on  de- 


eGen'l  Code.  §  11663  (R.  S. 
§5380).  "Where  a  dormant  judg- 
ment is  revived  under  §6358  (Gen'l 
Code,  §11648),  it  does  not  bv  vir- 
tue of  its  revivor,  become  a  lien  on 
lands  acquired  by  the  debtor  after 
its  original  recovery,  unless  a  l°vv 
is  made  thereon  either  before  it  be- 
came dormant  or  after  its  revision." 
Smith  v.  Ho<r<?.  52  O.  R.  528. 

7  Smith  v.  Hogg.  52  O.  S.  528 ; 
Roades  v.  'Symmes,  1  O.  281 ;  Styles 
v.  Murphy,  4  O.  92;  Norton  v 
Beaver,  5  O.  178;  Miner  v.  Wallace, 


10  O.  403;  Hutchinson  v.  Hutchin- 
son, 15  O.  301 ;  Tucker  v.  Shade,  15 
O.  S.  355;  Wuest  v.  James,  51  O.  S. 
230. 

s  Rankin  v.  Hannan.  37  O.  S. 
117;  Moore  v.  Ogden,  35  O.  S.  430; 
Beaumont  v.  Ogden,  24  O.  S.  452. 

9  Moore  v.  Ogden,  35  0.  S.  430. 

io  See  Kinkead's  Code  Pleading; 
Kinkead's  Court  Practice:  Whitta- 
ker's  Annotated  Civil  Code;  1  Bates' 
Pleading,  Practice,  Parties  and 
Forms. 


§101 


MERWfNE    ON    REAL    ACTIONS. 


80 


ferred  payments,  to  be  secured  by  mortgage  on  the  premises 
so  sold.11 

A  fi.  fa.  issued  and  levied  on  the  lands  of  the  judgment  debtor 
after  his  death  and  his  lands  sold  thereunder  gives  no  title  to  the 
purchaser  of  such  lands.12  But  where  the  execution  is  issued 
and  a  levy  made  on  the  lands  of  the  execution  creditor  during 
his  lifetime,  the  lands  so  levied  on  may  be  sold  under  the  execu- 
tion without  making  his  personal  representatives  a  party  to  the 
judgment.13 

In  the  absence  of  any  order  to  the  contrary,  it  is  made  the 
duty  of  a  sheriff  under  an  order  for  the  sale  of  real  estate  to 
sell  for  cash.14  And  it  is  the  duty  of  the  sheriff  to  return  the 
writ  of  such  sale  within  sixty  days  from  the  date  thereof,15  and 
his  failure  to  perform  either  of  these  duties  will  subject  him  to 
amercement.16 

Sec.  101.     In  what  cases  no  preference  given  to  execution. 

When  two  or  more  writs  of  execution  against  the  same  debtor 
are  sued  out  during  the  term  in  which  judgment  is  rendered,  or 
within  ten  days  thereafter,  and  when  two  or  more  writs  of  execu- 
tion against  the  same  debtor  are  delivered  to  the  officer  on  the 
same  day,  no  preference  can  be  given  to  either  of  such  writs; 
but  if  a  sufficient  sum  of  money  be  not  made  to  satisfy  all  execu- 
tions, the  amount  made  must  be  distributed  to  the  several  cred- 
itors in  proportion  to  the  amount  of  their  respective  demands; 
in  all  other  cases  the  writ  of  execution  first  delivered  to  the  officer 
must  be  first  satisfied,  and  the  officer  is  required  to  endorse  on 
every  writ  of  execution  the  time  when  he  received  the  same ; 
but  nothing  contained  in  this  paragraph  can  be  so  construed  as  to 


n  Gen'l  Code,  §11664  (R.  S. 
§5381).  iSee  Gen'l  Code,  §12104 
(R.  S.  §5595),  for  amercement  of 
sheriff  on  his  failure  to  do  his  duty. 
There  should  be  endorsed  on  the 
hack  of  the  execution  the  exact 
amount  of  the  judgment.  Mone- 
ghan  v.  Moneghan,  25  0.  S.  325.  A 
levy  will  not  be  set  aside  because 
the  officer  made  a  mistake  in  mak- 
ing his  indorsement  on  the  execu- 
tion. As  where  the  officer  levies 
on   real    estate   and    so    states,   but 


fails  also  to  state  in  his  return 
"no  goods."  Cook  v.  Duismore,  5 
C.  C.  391. 

12  Lessee,  etc.,  v.  Reed,  5  O.  221. 

is  Bigelow  v.  Renker,  25  O.  S. 
609. 

i*  Sharp  v.  Ross,  7  C.  C.  56. 

is  Ibid.  Gen'l  Code,  §11712  (R. 
S.  §5418). 

is  Ibid.  Gen'l  Code,  §  12103  (R. 
!S.  §  5594)  ;  see  No.  19  for  form  for 
writ  of  execution. 


81 


REAL   ESTATE    UNDER    JUDGMENTS.  §§102,103 


affect  any  preferable  lien  which  a  judgment  on  which  execution 
issued  has  on  the  lands  of  the  judgment   debtor.17 

Sec.  102.     Goods   and   chattels   to  be   first  taken — For  want 
thereof,  lands  to  be  levied  upon. 

The  officer  to  whom  a  writ  of  execution  is  delivered  is  required 
by  law  to  proceed,  immediately,  to  levy  the  same  upon  the  goods 
and  chattels  of  the  debtor;  but  if  no  goods  and  chattels  can  be 
found,  the  officer  must  endorse  on  the  execution  the  words  "no 
goods,"  and  forthwith  levy  the  same  upon  the  lands  and  tene- 
ments of  the  debtor  which  are  liable  to  satisfy  the  judgment.18 

The  provision  of  this  statute  that  if  no  goods  and  chattels  can 
be  found,  the  officer  must  endorse  on  the  execution  "no  goods" 
is  directory  merely,  and  the  execution  debtor  may  waive  the  pro- 
vision. Such  waiver  will  always  be  presumed  unless  he  asserts 
his  rights  thereto  by  a  direct  proceeding  to  set  aside  the  action 
of  the  officer.  In  a  case  where  the  debtor  has  goods  and  chattels, 
but  the  officer  does  not  lew  thereon,  but  does  levy  on  the  lands 
of  the  judgment  debtor,  the  lien  of  such  levy  on  the  lands  will 
not  be  lost  as  against  subsequent  purchasers  and  creditors,  be- 
cause the  officer  omits  to  endorse  on  the  writ  "no  goods."  19 

Sec.  103.    Lands  must  be  appraised  by  freeholders  before  sale. 

Where  execution  is  levied  upon  the  lands  and  tenements,  the 
officer  who  makes  the  levy  must  call  an  inquest  of  three  disin- 
terested freeholders,  who  must  be  residents  of  the  county  where 
the  lands  taken  in  execution  are  situated,  and  administer  to  them 
an  oath  to  impartially  appraise  the  property  so  levied  upon,  on 
actual  view;  and  such  freeholders  are  required  forthwith  to  re- 
turn to  such  officer,  under  their  hands,  an  estimate  of  the  real 
value  of  the  property  in  money.20 


i^Gen'l  Code,  §  11665  (R.  S. 
§5382);  see  in  this  connection, 
Meir  v.  Bank,  55  O.  S.  447;  Ryan 
v.  Root,  560  S.  302;  Raugh  v. 
Aeknovitch,  36  W.  L.  B.  302;  Doll 
v.  Barr,  58  O.  S.  113;  Weber  v. 
King,  7  W.  L.  B.  148;  Derckson  v. 
Ried,  2  Handy  159;  Bank  v.  Roosa, 
13  O.  334;  Waymire  v.  Staly.  3 
O.  366 ;  Patton  v.  Sheriff,  2  O.  395. 

isGen'l  Code,  §11666  (R.  S. 
§5383). 

is  Coal  Co.  v.  Bank,  55  O.  S. 
233.     A  return  of  the  writ  in  such 


case  by  direction  of  the  creditor 
without  a  sale  of  the  property,  is 
not  a  discharge  of  the  lien.  Ibid. 
See  also  Cook  v.  Duismore,  5  C. 
C.   585. 

soGen'l  Code,  §  11672  ( R.  S. 
§  5389 ) .  See  No.  8  for  form  for 
appraisement.  The  provision  of  this 
section  and  §  5390  ( Gen'l  Code, 
§11673)  applied  equally  to  levying 
on  lands  whether  in  the  county  or 
in  another  county.  Bank,  etc.,  v. 
Wheeling,  etc.,  11  C.  C.  413. 


§§  104-1 06 


MERWINE   ON    REAL   ACTIONS. 


82 


The  duties  of  a  sheriff  in  this  State  as  to  his  proceedings  under 
an  execution,  are  regulated  and  controlled  by  statute,  and  the 
statutory  proceeding  relating  thereto  must  be  strictly  pursued.21 

Sec.  104.    Appraiser  cannot  purchase. 

It  is  the  policy  of  the  law  to  prevent  fraud  at  judicial  sales, 
and  for  this  reason  appraisers  are  not  permitted  to  purchase  real 
estate  they  have  helped  to  appraise.  The  question  of  fraud  or 
deceit  may  not  enter  into  the  question.  When  it  appears  to  the 
court  that  an  appraiser  is  a  purchaser,  the  court  will  set  the  sale 
aside  and  order  a  new  appraisement.22 

Sec.  105.   The  appraisement  must  be  made  upon  actual  view. 

Following  the  requirement  of  the  statute,  our  courts  have  in- 
variably held  that  the  appraisement  must  be  made  upon  actual 
view.  It  matters  not  how  familiar  the  appraisers  may  be  as  to 
the  real  estate,  they  must  appraise  it  upon  actual  view  at  the 
time  the  appraisement  is  made.  As  one  court  said:  "Though 
they  may  have  seen  it  often  and  recently,  yet  they  cannot  tell 
how  far  its  conditions  may  have  been  altered  in  a  day  by  im- 
provements or  otherwise,  and  what  effect  an  additional  view  and 
comparison  of  opinion  of  all  the  appraisers  might  have  had."23 

In  another  case  it  was  decided  that  it  will  not  be  sufficient  for 
the  appraisers  to  appraise  real  estate  on  which  there  are  located 
buildings,  without  the  appraisers  inspecting  the  interior  thereof.24 

Sec.  106.  Parol  evidence  may  be  introduced  to  show  mistake 
in  an  appraisement  and  the  appraisement  may  be  set  aside, 
when. 

At  any  time  before  the  confirmation  of  sale,  the  fact  that  the 
appraisement  was  not  made  upon  actual  view,  or  that  the  statu- 


21  Creditors  v.  Search,  3  W.  L.  M. 
320;  Avery  v.  Ruffin,  4  O.  423; 
Harlan  v.  Roberts,  3  W.  L.  M.  202. 

22  Ferrell  v.  Anchauer,  14  O.  S. 
80;  Armstrong  v.  Huston,  8  O.  552; 
Bohart  v.  Atkinson,  14  O.  228. 

23  Creditors  v.  Search,  3  W.  L.  M. 
202;  sec  No.  158  for  forms  of  mo- 
tion to  set  aside  an  appraisement; 
see  No.  160  for  form  of  order  of 
court    setting    aside     an     appraise- 


ment and  ordering  a  new  appraise- 
ment; see  No.  161  for  form  of  order 
of  court  ordering  a  new  appraise- 
ment after  property  has  been  twice 
offered  for  sale  and  not  sold  for 
want  of  bidders.  See  No.  162  for 
order  of  the  court  fixing  price 
at  which  real  estate  to  be  sold. 

a  In  re  Slane,  42  W.  L.  B.  80. 
See  also  on  this  subject,  Mills  v. 
Life,  etc.,  4  W.  L.  B.  935. 


63 


REAL   ESTATE    UNDER    JUDGMENTS. 


§106 


tory  requirements  as  to  appraisements  have  not  been  complied 
with,  may  be  proved  by  parol,  and  the  appraisement  may  be  set 
aside.25 

In  an  action  in  the  probate  court  by  an  administrator  to  sell 
the  lands  of  his  intestate  to  pay  debts,  a  mistake  occurred  in  the 
return  of  the  appraisement,  by  which  it  appeared  that  one  par- 
cel of  the  land  to  be  sold  had  been  appraised  with  an  adjoining 
tract  of  surface,  whereas,  in  fact,  such  parcel  had  been  appraised 
with  a  tract  of  coal  land.  This  mistake  was  afterwards  carried 
into  the  deeds  made  by  the  administrator  conveying  to  different 
purchasers  the  lands  by  them  respectively  purchased.  The  re- 
sult of  these  mistakes  were  such  that  the  parcel  so  appraised  was 
conveyed  to  the  purchaser  of  the  adjoining  tract  of  surface,  who 
had  neither  bought  nor  paid  for  it,  instead  of  to  the  purchaser 
of  the  coal  tract,  who  had  done  both.  The  latter  went  into  pos- 
session of  it.  Afterwards  an  action  was  brought  by  the  heirs 
of  the  purchaser  in  whose  deeds  the  lands  had  been,  by  mistake, 
included,  to  recover  the  possession  of  the  same  from  the  real 
purchasers.  The  latter,  by  a  cross-petition  set  forth  the  mistake 
in  the  proceedings  of  the  probate  court,  as  well  as  that  in  the 
deed,  and  prayed  for  the  correction  of  both  mistakes.  The 
plaintiff  took  issue,  by  their  reply,  upon  the  averments  of  the 
cross-petition  respecting  the  mistakes  in  both  particulars.  It 
was  held  in  this  case  that  a  court  possessing  general  jurisdiction 
in  equity,  was  authorized  to  correct  the  mistake  in  the  proceed- 
ings in  the  probate  court  as  well  as  that  in  the  deed,  and  that 
parol  evidence  was  admissible  on  issue  respecting  the  mistake.26 

In  all  of  the  cases  of  this  character  the  courts  have  been  care- 
ful to  say  that  there  was  no  intention  to  depart  from  the  well- 
established  doctrine  that  the  title  of  a  purchaser  at  a  judicial 
sale,  who  has  paid  a  consideration  for  his  purchase,  cannot  be 
attacked  collaterallv   for  irregularities. 


25  Creditors  v.  Search,  3  W.  L.  M. 
320 ;  Mathews  v.  Thompson,  3  0. 
272;  Speller  v.  Nye,  16  C.  16;  Ibid. 
563. 

2a  Syllabus  in  Gill  v.  Pelkey,  54 
O.  £.349.  "The  title  of  a' pur- 
chaser, at  a  judicial  sale,  as  a  gen- 
eral rule,  cannot  be  impeached  in 
equity  for  errors  or  irregularities 
in  the  proceedings;  but  wnere  a 
tract  of  land   in  fact  sold,  and   for 


which  no  consideration  was  paid  or 
intended  to  be  paid,  is,  by  mistake, 
in  the  report  of  sales,  such  mistake 
may  be  corrected  in  equity,  as 
against  the  purchaser  or  his  heirs 
even  after  confirmation  and  deed  in 
pursuance  thereof.  Parol  evidence 
may  lie  admitted  to  prove  such  mis- 
takes." Cites  v.  Widner,  35  0.  S. 
555. 


§107 


MERWINE   ON    REAL   ACTIONS. 


84 


In  the  above  case,  the  syllabus  of  which  has  been  quoted,  the 
court  in  its  opinion  was  careful  to  say  that  all  courts  whose  pow- 
ers are  invoked  to  correct  mistakes  alleged  to  exist  in  judicial 
records,  will  exercise  those  powers  with  due  regard  for  the  sta- 
bility of  judgments,  and  will  require  the  mistake  to  be  estab- 
lisheel  by  clear  and  convincing  evidence  before  granting  relief 
upon  that  ground.27 

Sec.  107.    What  must  be  included  in  the  appraisement. 

In  an  early  case  under  the  old  procedure  where  it  was  neces- 
sary to  sell  a  mortgagor's  interest  in  real  estate  upon  execution, 
it  was  held  that  the  valuation  should  be  made  of  the  entire 
estate,  and  that  it  was  not  competent  for  the  appraisers  to  make 
an  estimate  of  the  value  and  deduct'  the  incumbrances.28 

Where  J  finds  are  being  sold  under  an  execution,  it  is  improper 
for  the  appraisers,  in  fixing  the  value  of  the  real  estate,  to  take 
into  consideration  the  value  of  the  growing  crops  in  such  esti- 
mate.    Such  crops  should  be  excluded  from  the  valuation.29 

In  all  cases  where  lands  are  to  be  sold  under  an  execution,  there 
must  be  an  appraisement  and  the  appraisers  must  be  sworn  or 
the  sale  will  be  void.  In  one  of  the  old  cases  it  was  held  that 
a  sale  without  an  appraisement  is  void;  that  the  real  estate 
must  be  appraised  on  oath;  that  it  must  sell  for  two-thirds  the 
appraised  value  thereof,  and  that  it  must  appear  that  these  con- 
ditions have  been  complied  with  before  the  court  will  confirm 
the  sale,  and  we  take  it  that  such  is  the  law  to-day.30 

When  the  officer  receives  the  return  of  the  writ,  it  is  made  his 
duty  to  forthwith  deposit  a  copy  thereof  with  the  clerk  of  the 
court  from  which  the  writ  issued,  and  immediately  advertise  and 
sell  such  real  estate  agreeably  to  the  provisions  in  the  statutory 
requirements  herein  set  forth."'1 

The  reason  for  requiring  a  copy  of  the  appraisement  filed  with 
the  clerk  is  because  his  office  is  the  only  accessible  place  where 


27  Hill  v.  Pelkey,  54  O.  S.  364; 
Heads  v.  Sims,  29  Ind.  574. 

2*  P.aird    v.    Kirkland,  -8    O.    31. 

29  Houts  v.  Showalter,  10  O.  S. 
127. 

so  Lessee  v.  Oosterout,  1  0.  32. 
But  in  Allen  v.  Parish,  3  0.  187,  it 
was  held  that  "where  lands  sold 
upon  execution  are  not  valued,  and 
the  objection   was  not   made  at  the 


return  of  the  execution,  the  pur- 
chaser, if  a  stranger,  is  not  affect- 
ed." This  case  evidently  followed 
the  proposition  stated  ahove  that 
hefore  the  confirmation  corrections 
can  he  made  which  will  not  he  made 
after  the  sale  is  confirmed  and  the 
deed   is  given  to  the  purchaser. 

s«  Oen'l     Code,     §11674      (R.     S. 
§  5390 ) . 


85  REAL   ESTATE   UNDER    JUDGMENTS.  §§  108,  109 

creditors,  attorneys  and  buyers  can  learn  what  the  appraisement 
is.  A  knowledge  of  this  is  essential  to  enable  them  to  determine 
whether  they  will  buy  at  the  sale.32 

At  all  times  prior  to  the  confirmation  of  a  sale  of  real  estate,  a 
strict  compliance  with  the  statute  regulating  the  levying,  ap- 
praisement, advertisement  and  sale  will  be  required  because  it 
must  be  presumed  that  a  failure  has  been  prejudicial  to  debtor 
and  creditor,  since  it  cannot  be  known  how  many  bidders  may 
have  been  lost  by  non-compliance  with  the  law.33 

In  most  of  the  courts  of  this  State,  the  written  appraisement, 
signed  by  the  appraisers,  is  not  made  a  part  of  the  complete 
record,  and  it  does  not  appear  in  the  chain  of  title,  or  in  the 
record  of  the  case,  except  the  recitals  in  the  sheriff's  return  of 
his  proceedings  under  the  writ.  This  is  the  practice  in  the  Frank- 
lin County  (Ohio)  courts.  The  appraisal  papers  are  kept  on  file 
by  the  clerk,  and  are  not  found  in  the  jacket  with  the  other 
papers  on  file  in  the  case  to  be  entered  either  upon  the  journal 
or  upon  the  complete  record  thereof. 

Sec.  108.     When  real  estate  may  be  sold  without  valuation. 

Real  estate,  the  property  of  individuals  indebted  to  the  State 
for  any  debt  or  taxes,  or  in  any  other  manner,  except  for  loans 
heretofore  authorized  by  the  Legislature,  must  be  sold  without 
valuation,  for  the  discharge  of  such  debts  or  taxes,  agreeably  to 
the  laws  of  such  case  made  and  provided.34 

If  the  property  of  a  clerk,  sheriff,  coroner,  justice  of  the  peace, 
or  constable,  or  of  a  collector  of  State,  county,  municipal,  corpo- 
ration or  township  tax,  be  levied  on,  for  or  on  account  of  any 
money  by  him  collected  or  received  in  his  official  capacity,  the 
property  so  levied  upon  is  required  to  be  sold  without  valuation.35 

Sec.  109.     The  lien  of  a  judgment  restricted  to  two-thirds  of 
the  appraised  value  of  the  lands  levied  on. 

If,  upon  such  return,  it  appears  by  the  inquisition  that  two- 
thirds  of  the  appraised  value  of  the  land  and  tenements  so  levied 

32  Creditors  v.  Search,  3  W.  L.  M.  34  Gen'l  Code,  §11674  ( R.  S. 
320.  Cxwynn  on   Sheriffs,   318.  §5391). 

33  Creditors  v.  Search,  3  W.  L.  M.  35  Gen'l  Code,  §11680  (R.  &. 
320 ;  Whitehead  v.  Post,  3  W.  L.  M.  §  5392 ) . 

195 ;  Crag  v.  Fox,  16  O.  563. 


§§  110,  111  MERWINE    ON    REAL    ACTIONS.  86 

upon  is  sufficient  to  satisfy  the  execution,  with  costs,  the  judg- 
ment on  which  the  execution  issued  will  not  operate  as  a  lien  on 
the  residue  of  the  debtor's' estate  to  the  prejudice  of  any  other 
judgment  creditor.30 

Sec.  110.  Lands  cannot  be  sold  for  less  than  two-thirds  of  the 
appraisement,  except  as  to  enforcement  of  a  junior  lien — 
Court  may  determine  minimum  amount  for  which  real 
estate  may  be  sold. 

But  no  tract  of  land  can  be  sold  for  less  than  two-thirds  of  the 
value  returned  in  the  inquest,  except  in  all  cases  where  a  junior 
mortgage  or  other  junior  lien  is  sought  to  be  enforced  against  real 
estate  by  an  order,  judgment  or  decree  of  court,  subject  to  a 
prior  lien  or  liens  on  such  real  estate,  and  such  prior  lien  or  liens, 
and  the  claims  or  obligations  secured  thereby  are  unaffected  by 
such  order,  judgment  or  decree,  the  court  making  such  order, 
judgment  or  decree  shall  have  power  to  determine  the  minimum 
amount  for  which  such  real  estate  may  be  sold,  the  said  mini- 
mum amount,  however,  to  be  not  less  than  two-thirds  of  the 
difference  between  the  value  of  said  real  estate  as  appraised 
under  section  five  thousand  three  hundred  and  eighty-nine  (Gen'l 
Code,  §  11672)  hereinbefore,  and  the  amount  remaining  unpaid 
on  the  claims  or  obligations  secured  by  such  prior  lien  or  liens.37 

Sec.  111.  Persons  occupying  trust  relations  cannot  bid  at 
their  own  sales. 

A  guardian  cannot  buy  real  estate  which  he  sells  by  order  of 
the  court.  This  is  so  also  of  an  administrator,  executor,  assignee, 
trustee,  or  anyone  occupying  a  trust  relation  to  the  real  estate 
sold  by  or  under  a  judicial  decree.  And  the  good  faith  or  bad 
faith  of  the  purchaser  does  not  enter  into  the  question.  When 
it  comes  to  the  court  that  any  such  person  has  purchased  real 
estate  at  his  own  sale,  the  sale  will  be  set  aside  without  further 
proof.38 

seGen'l     Code,     §  11674      (R.     S.  S.  189;  Droone  v.  Fanning.  2  Johns' 

§5391).  Ch.   252;    Sheldon   v.  Newton.   3   O. 

87  Gen'l      Code,      §11674      (R.  S.  S.    494:     Pratt    v.    Longworth,    27 

8  5391).  0.   S.   169;    Welsh   v.   Perkins.   8   0. 

3s.Cahi|rell  v.  -Caldwell.   45  0.  S.  52;    Reddle  v.   Roll,   24   0.   S.   572; 

513;   Barrington  v.  Alexander,  6  0.  MitcheJl  v    Dunlap,   10  0.   117. 


87  REAL   ESTATE    UNDER    JLDGMENTg.  §§112,113 

Sec.  112.     Purchasers  making  unsatisfactory  bid  to  pay  addi- 
tional sum  to  satisfy  costs  and  allowances. 

And  if  the  sum  bid  by  the  purchaser  for  the  real  estate  so  sold 
under  the  provisions  of  this  section,  and  the  preceding  sections 
relating-  to  the  enforcement  of  junior  liens  be  insufficient  to  pay 
such  costs  and  allowances  as  the  court  may  have  determined 
prior  to  such  sale,  should  be  paid  out  of  the  proceeds  of  such 
sale  pursuant  to  the  terms  of  such  mortgage  or  lien  so  sought 
to  be  enforced,  then  said  purchaser  will  be  required  to  pay  in 
addition  to  the  amount  of  his  bid  a  sum  which  with  said  amount 
so  bid  will  be  sufficient  to  pay  such  costs  and  allowances,  and 
the  court  will  have  power  to  fix  such  amount  remaining  unpaid 
on  such  claims  or  obligations  for  the  purpose  of  such  sale,  and 
to  that  end  may  require  in  its  discretion  the  parties  to  said  suit, 
to  furnish  to  the  court  evidence  of  such  unpaid  amount  which 
will  be  satisfactory  to  the  court.39 

Sec.  113.  Requirement  as  to  advertisement  of  sale  of  land 
under  order  of  court — Requirement  as  to  description  or 
location  of  property. 
All  notices  and  advertisements  for  the  sale  of  any  lands  and 
tenements  located  in  any  hamlet,  village,  town  or  city  in  the 
State  of  Ohio,  which  notice  and  advertisement  is  made  by  virtue 
of  proceedings  in  any  court  of  record  in  said  State,  must  con- 
tain in  addition  to  the  description  of  such  lands  and  tenements, 
the  street  number  of  building  or  buildings  erected  on  said  lands, 
or  the  street  number  of  the  lots  offered  for  sale ;  and  if  no  such 
number  exists,  then  such  notice  or  advertisement  must  contain 
the  name  of  the  street  or  road  upon  which  said  lands  and  tene- 
ments are  located,  together  with  the  name  of  the  street  or  road 
immediately  north  and  south  or  east  and  west  of  such  lands  and 
tenements,  that  cross  or  intersect  the  street  or  road  upon  which 
such  lands  or  tenements  are  located,  and  all  notices  and  adver- 
tisements for  the  sale  of  any  lands  and  tenements  located  in  any 
township  and  not  within  the  limits  of  any  hamlet,  village,  town 
or  city  in  the  State  of  Ohio,  which  notice  and  advertisement 
is  made  by  virtue  of  proceedings  in  any  court  of  record  in  said 
State,  must  contain  the  name  of  the  township  in  which  said  lands 
and  tenements  are  located.40 

ssGen'l     Code,     §11674     (R.     S.  40  Gen'l     Code,     §11678      (R.     S. 

§5391).  §5391-1).     See  Xo.  149  for  form  of 

publication  of  legal  notice. 


§  114  MERWINE   ON    REAL   ACTIONS.  88 

Sec.  114.     Requirements  as  to  publication  of  sale  of  real  estate. 

Lands  and  tenements  taken  in  execution  cannot  be  sold  until 
the  officer  causes  to  be  given  public  notice  of  the  time  and  place 
of  sale,  for  at  least  thirty  days  before  the  day  of  sale,  by  adver- 
tisement in  a  newspaper  printed  and  of  general  circulation  in  the 
county,  or,  if  no  newspaper  is  printed  in  the  county,  in  a  news- 
paper of  general  circulation  therein,  and  by  putting  up  an 
advertisement  of  the  same  upon  the  court  house  door  and  in 
five  other  public  places  in  the  county,  two  of  which  must  be 
in  the  township  where  the  lands  and  tenements  are  situate ;  when 
the  advertisement  is  made  in  a  newspaper  published  weekly,  it 
will  be  sufficient  to  insert  it  in  five  consecutive  numbers  thereof; 
but  if  there  is  published  both  a  daily  and  weekly  edition  of  the 
newspaper  selected  for  such  advertisement,  and  the  circulation 
of  the  daily  in  the  county  exceeds  that  of  the  weekly,  or  if  the 
lands  and  tenements  taken  in  execution  are  situate  in  any  city 
in  this  State,  and  there  is  published  both  a  daily  and  weekly 
edition  of  a  newspaper  selected  for  such  advertisement,  and  the 
circulation  of  the  daily  in  such  city  exceeds  that  of  the  weekly, 
it  will  be  sufficient  to  publish  the  advertisement  in  the  daily  once 
a  week,  for  five  consecutive  weeks,  before  the  day  of  sale,  each 
insertion  to  be  the  same  day  of  the  week ;  but  the  expense  of  such 
publication  in  a  daily  newspaper  dare  not  exceed  the  cost  of 
publishing  the  same  in  a  weekly  newspaper ;  and  all  sales  made 
without  such  advertisement  can  be  set  aside  on  motion,  by  the 
court  to  which  the  execution  is  returnable.41 

In  a  case  under  the  old  practice,  it  was  held  that  where 
a  newspaper  is  printed  in  the  county,  it  was  sufficient  for  a 
sheriff  to  advertise  sales  upon  execution  in  it,  and  that  in  such 
case  an  advertisement  need  not  be  made  at  the  door  of  the  court 
house.42 

In  computing  the  thirty  days'  time  for  the  advertisement  of 
sales  under  an  execution,  the  day  of  sale  is  excluded,  but  the  day 
upon  which  advertisement  was  first  made  may  be  included.43 

In  another  case  it  was  held  that  where  notice  of  the  time  and 
place  of  sale  by  a  sheriff  is  advertised  for  thirty  days  before  the 

4i  Oen'l     Code,     §11681      (R.   S.  «  Fitch  v.  Heirs,  2  0.  78. 

§5393).     See  No.   136  for  form  of  « Hagerman    v.    Ohio,    25    O.    S. 

publication;    No.    137  for  proof  of  186. 
publication. 


89 


REAL   ESTATE    UNDER    JUDGMENTS. 


§115 


day  of  sale  in  a  weekly  newspaper,  it  is  no  objection  that  the 
first  number  containing  the  notice  was  printed  and  published 
in  advance  of  the  day  and  week  on  which  the  publication  was 
usually  made.44 

If  the  publication  is  made  in  a  semi-weekly  newspaper,  it  is 
not  necessary  that  the  publication  be  on  the  same  day  of  each 
week,  but  where  an  advertisement  of  a  sale  of  real  estate  is  pub- 
lished in  a  daily  newspaper,  it  must  be  on  the  same  day  of  each 
week,  or  the  irregularity  will  be  such  as  will  authorize  a  court 
before  confirmation  of  the  sale  to  set  it  aside.45 

A  mistake  in  the  legal  advertisement  in  a  sale  of  real  estate 
at  judicial  sale,  in  the  title  and  number  of  the  case  is  such  irreg- 
ularity as  will  not  effect  the  validity  of  the  sale.46 

Where  in  a  master's  sale  of  real  estate  the  advertisement  of  the 
sale  gave  the  lot  number,  the  plat  and  the  subdivision  correctly, 
but  the  description  of  the  lot  by  metes  and  bounds  was  incor- 
rectly given,  yet  the  description  given  being  sufficient  to  cor- 
rectly locate  the  land,  the  sale  was  sustained.47 

The  publication  of  sale  of  real  estate  cannot  be  made  legally 
without  a  copy  of  the  appraisement  being  filed  with  the  clerk  as 
required  by  statute,  but  such  neglect  will  not  make  a  bad  title 
if  such  sale  should  be  confirmed.48 


Sec.  115.  Publication  of  notice  of  sale  in  newspapers  other 
than  those  printed  in  the  English  language. 
In  any  county  wherein  is  published  and  printed  a  newspaper 
in  the  German  language,  and  which  has  a  circulation  of  at  least 
five  hundred  and  fifty  copies  of  bona  fide  subscribers  within  the 
county,  the  notice  required  by  the  preceding  section,  must,  in 


«  Wilson  v.  Scott,   29   0.  S.   037. 

45  Lemert  v.  Clark,  1  C.  C.  569. 
"Though  the  letter  of  the  law  may 
have  been  complied  with  in  giving 
notice  of  the  sale,  yet  if  the  court 
is  satisfied  the  notice  was  pub- 
lished in  a  paper  not  of  general 
circulation  in  the  county,  it  may 
refuse  to  confirm  the  sale."  Crag 
v.  Fox,  16  0.  564.  A  mistake  of 
the  names  in  advertisement  of  a 
sale  in  foreclosure  proceeding,  not 
fatal.  Schneider  v.  Terrin,  41  W. 
L.  B.  54. 


46  Brickell  v.  Miles,  7  X.  P.  X.  S. 
153,  citing  Cadwalader  v.  Evans, 
1  Disney,  585.  wherein  it  was  said 
that  it  has  long  been  the  policy  of 
our  courts  to  uphold  judicial  sales. 
*  *  *  No  technical  irregulari- 
ties are  permitted  to  deprive  the 
purchaser  of  the  right  lie  nas  ac- 
quired. 

47  Kotch  v.  Sieplem,  1  Cfeve.  10. 

48  Merritt,  etc.,  v.  Borden,  2  Dis- 
ney, 503. 


§§  116    117  MERWINE   ON    KEAL    ACTIONS.  90 

addition  to  the  publication  therein  required,  be  published  in  such 
newspaper  in  the  German  language,  for  the  same  time  and  in 
the  same  manner,  if  the  appraised  value  of  the  property  to  be 
sold  exceed  $500,  and  if  two  or  more  such  papers  are  printed 
and  published  therein,  the  publication  may  be  in  either,  but  the 
court  must,  on  motion  of  the  plaintiff  or  defendant,  and  may 
without  motion,  for  good  cause,  dispense  with  such  publication, 
and  in  any  county  the  court  may,  if  it  deem  the  interest  of  the 
defendant  require  it,  direct  the  publication  of  the  notice  in  a 
newspaper  printed  in  either  the  Bohemian  language  or  in  the 
Polish  language,  or  in  both,  in  addition  to  the  publication  required 
by  the  preceding  section,  but  no  error  or  mistake  in  translation, 
or  in  any  publication  authorized  by  this  section,  can  delay  pro- 
ceedings or  affect  the  title  of  the  property  sold,  and  if  any  such 
error  or  mistake  occur  by  the  negligence  of  the  publisher,  he  will 
not  be  entitled  to  compensation  for  the  publication.49 

Sec.  116.     The  return  of  the  writ  by  the  sheriff  and  the  record 
thereof. 

The  sheriff  is  required  to  endorse  on  the  writ  his  proceed- 
ings thereon,  and  the  clerk  is  also  required  immediately,  upon 
return  thereof,  to  record  at  length,  in  the  execution  docket,  or 
other  docket  provided  for  that  purpose,  all  such  indorsements; 
and  the  record  thereof  will  be  held  to  be  a  part  of  the  record  of 
the  court.50 

Sec.  117.     Purchaser  failing  to  pay,  punished  for  contempt. 

The  court  from  which  any  execution  or  order  of  sale  issues, 
must,  upon  notice,  and  motion  of  the  officer  who  makes  the  sale, 
or  of  an  interested  party,  punish  as  for  contempt  any  purchaser 
of  real  estate  who  fails  to  pay  the  purchase  money  therefor.51 

49  Gen'l  Code,      §  11G83      (R.      S.  this  provision  of  the  statute.     Lem- 

§5394).  ert    v.    Clark,    1    C.    C.    5159.      As   to 

so  R.    S.      §5395       (Gen'l      Code  whether    the    return    of    the    sheritl' 

§116S5i.      See    §5595     (Gen'l    Code  as    to    the    amendment    of    the    de- 

§12104)    for   amercement   of   sheriff  scription     of    the    real     estate,     see 

on  failure  to  do  his  duty.  Ohio,  etc.,  v.  Trust  Co.,   13   O.  220. 

After  a  confirmation  of  sale,  it  is  •r,i  Gen'l     Code,     §  11687      (R.     S. 

too  late  to  object  to  the  fact  that  §5397). 
the   sheriff   has   not   complied   with 


91  REAL   ESTATE   UNDER    JUDGMENTS.  §  118 

Sec.  118.    Confirmation  of  sale — Order  for  deed — Officer  may 
retain  purchase  money  until  sale  confirmed. 

If,  upon  the  return  of  any  writ  of  execution,  for  the  satisfac- 
tion of  which  lands  and  tenements  have  been  sold,  it  be  found 
by  the  court,  on  careful  examination  of  the  proceedings  of  the 
officer,  that  the  sale  has  been  made  in  all  respects  in  conformity 
to  the  provisions  of  this  title,  the  clerk  must  be  directed  to  make 
an  entry  on  the  journal,  that  the  court  is  satisfied  of  the  legality 
of  such  sale,  and  that  the  officer  make  to  the  purchaser  a  deed 
for  the  lands  and  tenements;  and  the  officer,  on  making  the  sale, 
may  retain  the  purchase  money  in  his  hands  until  the  court  ex- 
amines his  proceedings,  when  he  shall  pay  the  same  to  the  person 
entitled  thereto,  agreeably  to  the  order  of  the  court.62 

It  is  well  to  observe  here  that  there  is  a  different  rule  for  the 
action  of  the  court,  where  objection  is  made  prior  to  the  con- 
firmation of  a  sale  of  real  estate,  and  where  objection  is  made  to 
irregularities  occurring  after  the  confirmation.  Where  the  ob- 
jection is  made  to  any  irregularity  in  the  proceedings  prior  to  the 
confirmation,  the  court  can  exercise  a  sound  legal  discretion,53 
but  an  entirely  different  rule  applies  where  an  application  is  made 
to  set  aside  a  sale  after  the  confirmation.  Here  the  court  must 
see  to  it  that  the  judgments  and  orders  of  the  court  are  not  at- 
tacked collaterally. 

In  the  note  beloAv  will  be  found  cases  in  which  irregularities 
in  the  proceedings  leading  up  to  the  confirmation  of  sale  were 
cured  by  the  confirmation  of  the  sale  and  the  delivery  of  the 
deed  to  the  purchaser  by  the  sheriff.54 

So  important  is  this  matter  of  a  confirmation  of  sale  that  a 
sheriff's  deed  will  not  give  title  to  a  purchaser  at  judicial  sale,  if 
the  sale  has  not  been  confirmed  as  required  by  the  statute.55 


52Gen'l     Code,     §  11688      (R.     S.  ™  Lemert  v.   Clark,   1   C.  C.  571: 

§5398).     The  reversal   of  an  order  Miles  v.  Parks,  49  0.  S.  370;  Ohio. 

of     confirmation     vacates     sheriff's  etc.,  v.  Goodin,  10  0.  S.  566;   Crag 

deed.     McBain  v.  McBain,   15  0.  S.  v.   Fox,   10   0.   564 ;    Fideldy   v.    Di- 

337.      As   to    effect    of   appeals,   see  sederaus,    26    O.    S.    314;     Reed    v. 

Bassett   v.   Daniels,    10    0.    S.   617;  Radigan,  42   0.  S.  292. 
Beed    v.    Radigan,    42    0.    S.    292;  s* Craig  v.  Fox,  16  O.  563;  Mayer 

Sidener  v.  Alexander,  31  O.  S.  378;  v.   Wick,    15   O.   S.   548;    Lemert  v. 

Bear  v.  Bookmiller,  3  C.  C.  484.  Clark,  1  C.  C.  569. 

53  Lessee  v.  Norton,  1   0.  278. 


§§  119,  120  MERWENE    ON    REAL    ACTIONS.  92 

Sec.  119.     Right  of  judgment  debtor  to  redeem  at  any  time 
prior  to  confirmation. 

In  all  sales  of  real  estate  on  execution  or  order  of  sale  the  judg- 
ment debtor  may,  at  any  time  before  confirmation  of  the  sale 
thereof,  redeem  the  same  from  such  sale,  by  depositing  in  the 
hands  of  the  clerk  of  the  court,  to  which  such  execution  or  order 
is  returnable,  the  amount  of  the  judgment  or  judgments  or 
decree  upon  which  such  lands  were  sold,  with  all  costs,  including 
poundage,  together  with  interest  at  the  rate  of  eight  per  cent, 
per  annum  on  the  purchase  money  from  the  day  of  sale  to  the 
time  of  making  such  deposit;  or,  if  the  same  is  made  in  vacation, 
to  the  first  day  of  the  next  term,  except  where  the  judgment  cred- 
itor is  the  purebaser,  then  only  interest  at  said  rate  on  the  ex- 
cess above  his  claim;  and  the  court  must,  thereupon,  make  an 
order  setting  aside  such  sale  and  apply  said  deposit  to  the  pay- 
ment of  such  judgment  or  judgments  or  decree  and  cost  aforesaid, 
and  award  such  interest  to  the  purchaser,  who  shall  receive  from 
the  officer  making  such  sale,  the  purchase  money  paid  by  him,  and 
the  interest  aforesaid  from  said  clerk;  but  nothing  in  this  para- 
graph contained  shall  be  held  to  take  away  the  power  of  the 
court  to  set  aside  such  sale  for  any  reason  for  which  the  same 
might  have  been  set  aside  prior  to  the  enactment  of  this 
statute.56 

Sec.  120.     When  master  commissioner  may  convey  real  estate. 

Eeal  property  may  be  conveyed  by  a  master  commissioner 
or  special  master  only:  (a)  When  by  an  order  or  a  judgment 
in  an  action  or  proceeding,  a  party  is  ordered  to  convey  such  prop- 
erty to  another,  and  he  neglects  or  refuses  to  comply  with  the 
order  or  judgment,  and  the  master  is  directed  to  convey  on 
failure  of  the  party  to  comply  with  the  order,  (b)  When  spe- 
cific real  property  is  sold  by  a  master  under  an  order  or  judg- 
ment of  the  court;  but  no  court  within  this  State  can  make  or 
issue  an  order  to  any  master  commissioner  for  the  sale  of  any 
real  estate,  unless  there  exist  some  special  reason  or  reasons  why 

56  Gen'l  Code,  §11000  (R.  S.  against  the  debtor's  objection.  Reed 
8  5398-0).  "Where  a  judgment  v.  Radigan,  42  O.  S.  292.  Where 
debtor  pays  the  judgment  in  full,  debtor  desires  to  redeem  only  par- 
after  a  sheriff's  sale  of  his  land  to  ties  to  the  suit  are  to  be  considered, 
satisfy  it,  it  is  error  in  the  court  Swasey  v.  Cones  Wardens  Daily 
thereafter     to     confirm     such     sale  Bulletin,   6. 


93  REAL   ESTATE    UNDER    JUDGMENTS  §§  121,  122 

the  sale  of  real  estate  should  not  be  made  by  the  sheriff  cf  the 
county  where  said  decree  or  order  shall  be  mad::,  which  said 
reason  or  reasons,  if  the  court  shall  find  any  such  to  exist,  must 
be  embodied  by  said  court  in,  and  made  a  part  of,  its  judgment, 
order  or  decree  ordering  such  sale.57 

The  right  of  the  courts  to  appoint  special  masters  for  the  sale 
of  specific  real  estate  is  not  taken  away  by  this  provision  of  the 
code.58 

Sec.  121.     When  sheriff  may  act  as  and  for  master  commis- 
sioner. 

The  law  gives  a  master  commissioner  or  a  special  master  who 
sells  real  property  the  same  power  to  administer  oaths  that  is 
conferred  upon  the  sheriff;  a  sheriff  may  act  as  a  master  com- 
missioner, and  must,  also,  on  notice,  and  for  a  reasonable  com- 
pensation to  be  paid  by  the  master  commissioner  out  of  his  fees, 
attend  and  make  sale  for  any  such  commissioner  who,  by  rea- 
son of  sickness,  is  unable  to  attend ;  and  sales  made  by  a  master 
must  conform,  in  all  respects,  to  the  laws  regulating  sales  of 
land  upon  execution.59 

The  power  of  a  master  commissioner  given  by  this  statute,  ex- 
tends only  for  the  term  of  the  sheriff.  If  the  sheriff  has  made 
any  sales  of  real  estate  as  such  master  commissioner,  and  has  not 
executed  and  delivered  the  deed  therefor  during  his  term,  it  de- 
volves upon  his  successor  to  make  and  deliver  the  deed  for  the 
real  estate  to  the  purchaser.60 

Sec.  122.     The  recitals  required  in  a  deed  of  a  sheriff  or  master 
commissioner. 

An  officer,  including  a  master  commissioner  and  a  special  mas- 
ter, who  sells  real  property,  must,  on  confirmation  of  the  sale, 
make  to  the  purchaser  a  deed,  which  shall  contain  the  names  of 
the  parties  to  the  judgment,  the  date  and  amount  of  the  judg- 
ment, the  substance  of  the  execution  or  order  on  which  the  prop- 

57  Gen'l     Code,     §11691      (K.     S.  tainty   in   the  order.     Mechanics   v. 

§5399).      Where    real   estate   is   de-  O'Connor,  29  O.  S.  652. 

creed    to    be   sold    by   the    sheriff  or  58  Mayor   v.    Wick,    15   O.   S.   5+8. 

the     master     commissioner    of     the  59  Gen'l     Code,     §11692      (R.     S. 

county  without  naming  the  master,  §  5400 ) . 

no  objection  after  the  confirmation  so  Morton    v.    Gray.     1     W.L.M. 

can  be  made  on  account  of  uncer-  408. 


§§123,124 


AIERWINE   ON    REAL   ACTIONS. 


94 


erty  is  sold,  the  substance  of  the  officer's  return  thereon  and 
the  order  of  confirmation ;  and  the  deed  must  be  executed,  ac- 
knowledged and  recorded  as  is  provided  with  respect  to  other 
deeds." 

Sec.  123.     The  effect  of  a  deed  made  by  a  sheriff  or  master 
commissioner. 

The  deed  will  be  prima  facie  evidence  of  the  legality  and  reg- 
ularity of  the  sale ;  and  all  the  estate  and  interest  of  the  person 
whose  property  the  officer  so  professes  to  sell  and  convey,  whether 
that  interest  existed  at  the  time  the  property  became  liable  to 
satisfy  the  judgment,  or  was  acquired  subsequently,  will  be  there- 
by vested  in  the  purchaser.*52 

Sec.  124.     Printer's  fee  for  publication  of  sale  may  be  required 
in  advance. 

The  officer  who  makes  a  levy,  or  holds  an  order  of  sale,  may, 
before  giving  notice  of  the  sale,  demand  of  the  plaintiff,  his 
agent  or  attorney  the  fees  of  the  printer  for  publishing  such 
notice;  and  in  such  case  the  officer  will  not  be  required  to  make 
such  publication  until  the  fees  are  paid.63 


eiGeivl  Code,  8  11693  (R.  S. 
§5401).  Acknowledgment  of  a 
sheriff's  deed  is  indispensable  and 
such  acknowledgment  will  not  be 
presumed.  Roads  v.  Symmes,  1 
O.  281,  Sheriff's  deed  good  though 
not  reciting  all  the  statute  requires. 
Lessee  v.  Dibble,  10  O.  434.  "Where 
a  sheriff's  deed  recites  so  much  of 
the  execution  and  other  proceedings 
as  shows  a  clear  and  undoubted 
authority  for  its  execution,  such 
recitals  are  sufficient."  Lessee  v. 
McCoy,  8  0.  128.  "A  levy  and  sale 
of  land  upon  execution,  will  confer 
a  title  paramount  to  a  prior  as- 
signment of  the  property,  made  by 
a  judgment  debtor  to  a  creditor  to 
secure  a  debt,  which  has  not  been 
acknowledged  or  recorded."  Fosdick 
v.  Barr,  3  0.  S.  471.  As  to  when 
sheriff's  deed  takes  effect,  see 
Jashenosky    v.    Volraith,    59    0.    S. 


540;  Lessee  v.  Longworth,  11  O. 
236.  Mistake  in  deed  may  be  shown 
by  parol.  Gill  v.  Pelkey,  54  0.  S. 
348;  Lessee  v.  McCoy,  8*0.  128.  A 
court  of  equity  can  correct  sheriff's 
deed.  Stiles  v.  Widener,  35  0.  S. 
555.  Parol  evidence  may  be  intro- 
duced to  show  such  mistake.     Ibid. 

oaGen'l  Code,  §11694  ( R.  S. 
§5402).  A  purchaser  at  a  sheriff's 
sale  acquires  no  greater  interest 
than  the  judgment  debtor  had  at 
the  time  levy  and  sale  was  made, 
and  takes  the  property  subject  to 
outstanding  equities,  especially  if 
the  purchaser  has  notice  of  these 
equities.  M.  Louth  v.  Rathbone, 
19  O.  21.  Tf  some  defendants  are 
served  and  others  not,  proportion- 
ate share  of  tho*e  served,  sold  un- 
der deed,  will  pass  title.  Douglas 
v.  Massie,  16  O.  271. 

esGen'l  Code,  §11695  (R.  S. 
§5403). 


95 


REAL    ESTATE    UNDER    JUDGMENTS. 


§§125,126 


Sec.  125.     Where   sales   of  real  estate   are  required  to  take 
place — Alias  executions  against  lands,  issued,  when. 

All  sales  of  lands  or  tenements  under  execution  or  order  of 
sale  are  required  to  be  held  in  the  county  in  which  such  lands 
and  tenements  are  situate,  and  at  the  court  house,  unless  other- 
wise ordered  by  the  court,  and  purchasers  of  real  property,  by 
the  officer  making  sale  thereof,  or  by  an  appraiser  of  such  prop- 
erty, will  be  considered  fraudulent  and  void ;  but  nothing  in 
this  paragraph  can  affect,  unless  for  fraud,  sales  of  executors, 
administrators  or  guardians  prior  to  March  29,  1841.64 

A  judgment  debtor  can  have  a  sale  set  aside  after  confirmation 
where  an  appraiser  at  a  sheriff's  sale  is  the  purchaser,  and  at  the 
sale  is  active  in  keeping  other  persons  from  bidding.  In  such  an 
instance  the  judgment  debtor  must  act  before  confirmation  of 
sale  if  he  has  knowledge  of  the  fraud.65 

If  lands  and  tenements  levied  on,  or  ordered  to  be  sold,  be  not 
sold  upon  execution,  other  executions  may  be  issued  to  sell  the 


same. 


66 


Sec,  126.     Proceedings  when  creditors  direct  separate  levies 
to  be  made  on  separate  parcels  of  land. 

When  two  or  more  executions  come  to  the  hands  of  an  officer, 
and  it  is  necessary  to  levy  on  real  estate  to  satisfy  the  same,  and 
either  of  the  judgment  creditors  or  his  assignee,  requires  the  offi- 
cer to  make  a  separate  levy  to  satisfy  his  execution  or  executions, 
the  officer  must  obey  the  direction ;  but  the  officer  who  makes 
the  levy  on  behalf  of  the  creditor  whose  execution  may,  by  the 
provisions  of  this  chapter,  be  entitled  to  a  preference,  shall  have 
the  choice  of  such  part  of  the  real  property  of  the  judgment 
debtor  or  debtors  as  will  be  sufficient,  at  two-thirds  of  the  ap- 
praised value,  to  satisfy  the  same ;  when  two  or  more  executions, 


c^Gen'l  Code,  §11696  (R.  S. 
§5404). 

es  Hurst  v.  Fisher,  64  0.  S.  530; 
Armstrong  v.  Heirs,  8  O.  552.  "An 
administrator  cannot  be  directly  or 
indirectly  interested  as  a  purchaser 
at  his  own  sale  of  the  lands  of  the 
intestate,  neither  can  he  act  as  the 
agent  of  others,  with  a  view  of 
making    profits    out    of    suc't    pur- 


chases, while  his  relation  as  trustee 
still  subsists.  Piatt  v.  Longwerth, 
27  0.  S.  160;  Rammelsberg  v. 
Mitchell,  29  0.  S.  22;  Glass  v. 
Greathouse,  20  0.  503;  Dunlap  v. 
Mitchell,  10  0.  118;  see  also  Wade 
v.  Pettibone,  11  O.  57.  Successor 
to  sheriff  may  make  deed.  R.  S. 
§5407    (Gen'l    Code    §  11700). 

eeGen'l     Code,    §11697      ( R.     S. 
§5405). 


§§  127,  128  .  MERWINE    ON    REAL    ACTIONS.  96 

which  are  entitled  to  no  preference  as  to  each  other,  are  put  in 
the  hands  of  the  same  officer,  he  must,  when  required,  levy  the 
same  on  separate  parcels  of  the  real  estate  of  the  judgment  debtor 
or  debtors,  if,  in  the  opinion  of  the  appraisers,  the  same  may  be 
divided  without  material  injury;  and  if  the  real  property  of 
such  debtor  or  debtors  be  not  sufficient,  at  two-thirds  of  its  ap- 
praised value,  to  satisfy  all  the  executions  chargeable  thereon, 
such  part  of  the  same  must  be  levied  on,  to  satisfy  each  execu- 
tion, as  will  bear  the  same  proportion  in  value  to  the  whole  as 
the  amount  due  on  the  execution  bears  to  the  amount  of  all  the 
executions  chargeable  thereon,  as  near  as  may  be,  according  to 
the  appraised  value  of  each  separate  parcel.67 

Sec.  127.     Successor  of  sheriff  who  may  make  deeds  for  lands 
sold  by  predecessor. 

If  the  term  of  service  of  an  officer  who  makes  a  sale  of  any 
lands  and  tenements  expires,  or  if  such  officer  dies,  be  absent, 
or  unable  to  make  a  deed  of  conveyance  of  the  property  sold,  any 
successor  of  such  officer,  on  receiving  a  certificate  from  the  court 
from  which  execution  issued  for  the  sale  of  the  lands  and  tene- 
ments, signed  by  the  clerk,  by  order  of  the  court,  setting  forth 
that  sufficient  proof  has  been  made  that  the  sale  was  fairly  and 
legally  made,  and,  on  tender  of  the  purchase  money,  or  if  the 
same,  or  any  part  thereof,  has  been  paid,  then,  on  proof  of  such 
payment  and  tender  of  the  balance,  if  any,  may  execute  to  the 
purchaser  or  his  legal  representative,  a  deed  of  conveyance  of  the 
lands  and  tenements  sold,  and  such  deed  will  be  as  good  and 
valid  in  law,  and  have  the  same  effect  as  if  the  officer  who  made 
the  sale  had  executed  the  same.'18 

Sec.  128.     Rights  of  party  when  property  not  subject  to  exe- 
cution sold. 

"When  a  plaintiff  in  execution,  or  his  agent  has,  in  good  faith, 
ordered  a  levy  of  execution  upon  property  not  subject  thereto, 
and  the  same  has  been  sold  and  applied  on  his  judgment,  and 
a  recovery  therefor  has  been  had  against  him  by  the  owner  of 
the  property,  the  person  so  recovered  against,  and  having  paid 
the  amount  so  recovered,  may,  on  motion  in  the  court  having 

eTGen'l     Code,     §11698      (R.     S.  es  Gen'l     Code,     §11700      ( R.     S. 

§5406).  §5407). 


97  REAL    ESTATE    UNDER    JUDGMENTS.  §§  129-131 

control  of  the  judgment,  upon  giving  the  judgment  defendant 
notice  of  such  motion,  have  the  satisfaction,  so  made  from  the 
sale  of  the  property  on  execution,  vacated,  and  shall  be  entitled 
to  collect  the  judgment."9 

Sec.  129.  Relief  of  officer  who  levies  upon  and  sells  wrong 
property  in  good  faith. 

When  an  officer  to  whom  an  execution  has  been  issued  upon  a 
judgment  levies  the  execution,  in  good  faith,  upon  property  not 
subject  thereto,  and  sells  the  same,  and  applies  the  proceeds  in 
satisfaction,  or  part  satisfaction,  of  the  judgment,  and  a  recov- 
ery is  had  against  him  for  its  value,  the  officer,  upon  payment 
of  such  value,  and,  on  motion  before  the  court  having  control 
of  the  judgment  and  a  showing  to  the  court  that  due  notice 
of  such  motion  has  been  given  to  the  defendant  named  in  the  exe- 
cution, may  have  the  satisfaction  of  such  judgment,  so  made  from 
the  sale  of  such  property,  vacated  and  execution  shall  issue  there- 
for, for  the  use  of  such  officer,  the  same  as  if  such  levy  and  sale 
had  not  been  made.70 

Sec.  130.  Remedy  when  one  of  the  co-sureties  pays  for  such 
property. 

When  a  defendant  in  a  judgment,  or  a  surety  or  cosurety  of 
such  defendant,  has,  by  mistake  directed  an  execution  issued  on 
the  judgment  to  be  levied  on  property'  not  liable  to  such  execu- 
tion, and  thereby  cause  such  judgment  to  be  wholly  or  in  part 
satisfied,  and  lias  been  compelled  to  pay  the  owner  of  such  prop- 
erty therefor,  he  will  be  adjudged  to  have  the  same  rights  against 
any  co-defendant  in  such  judgment  and  against  any  co-surety  or 
principal  in  respect  of  the  debts  upon  which  such  judgment  is 
founded,  as  though  such  satisfaction  had,  by  due  process  of  law, 
been  made  out  of  the  property  of  such  defendant,  surety  or  co- 
surety so  directing  such  levy.71 

Sec.  131.  When  judgment  loses  preference  as  a  lien — Lien 
of  Supreme  and  circuit  court  judgments — How  long  to 
continue. 

No  judgment  on  which  execution  is  not  issued  and  levied 
before  the  expiration  of  one  year  next  after  its  rendition  can 

69Gen'l   Code,      §11705      (R.     S.  "i  Gen'l     Code,     §11707      (R.     S. 

§5412).  §5414). 

ToGen'l     Code,     §11706      (R.     S. 
§5413). 


§  132  MERWINE   ON   REAL   ACTIONS.  98 

operate  as  a  lien  upon  the  estate  of  a  debtor  to  the  prejudice 
of  any  other  bona  fide  judgment  creditor;  but  in  all  cases  in 
which  judgment  is  rendered  in  a  circuit  court  or  supreme  court 
and  a  special  mandate  is  directed  to  the  common  pleas  court  to 
carry  the  same  into  execution,  the  lien  of  the  judgment  creditor 
shall  continue  for  one  year  after  the  first  day  of  the  term  of 
the  court  of  common  picas  to  which  such  mandate  is  directed,  or, 
if  the  mandate  be  entered  on  the  journal  in  the  vacation  after 
it  is  so  entered;  and  in  computing  such  period  of  one  year  the 
time  covered  by  an  appeal  of  the  case  or  by  an  injunction  against 
the  execution  or  by  proceedings  in  error  or  by  a  vacancy  in  the 
office  of  sheriff  and  coroner,  or  by  the  inability  of  such  officers, 
must  be  excluded.72 

Under  the  foregoing  statute  it  has  been  held  that  where  a  judg- 
ment is  a  subsisting  lien  on  the  lands  of  the  debtor  at  the  time  of 
his  death,  it  is  not  necessary  thereafter  to  issue  execution  upon 
it  in  order  to  preserve  the  lien.72 

Sec.  132.     When  new  appraisement  for  sale  of  real  estate  on 
execution  may  be  made. 

When  real  estate  taken  on  execution  and  appraised  and  twice 
advertised  and  offered  for  sale,  remains  unsold  for  want  of  bid- 
ders, the  court  from  which  the  execution  issued  is  required,  on 
motion  of  the  plaintiff,  to  set  aside  such  appraisement  and  order 
a  new  appraisement  to  be  made,  or  set  aside,  such  levy  and  ap- 
praisement and  award  a  new  execution  to  issue,  as  the  case 
may  require;  and  when  such  real  estate,  or  any  part  thereof,  has 
been  three  times  appraised  as  aforesaid,  and  thereafter  twice 
advertised  and  offered  for  sale,  and  then  remains  unsold  for 
want  of  bidders,  the  court  may  direct  the  amount  for  which  the 
same  will  be  sold.74 

§0351  (Gen'l  Code  §11120)  Re- 
vised Statutes,  tlie  provisions  of 
§5416,  Revised  Statutes  (Gen'l  Code 
§11710)  apply  to  subsequent  pro- 
ceedings to  sell  under  the  decree 
§5416).  "When  an  assignee  com-  therein  made.  Ohio  v.  Commission- 
meneed  an  action  to  sell  \\\v  realty  ers.  40  O.  S.  331. 
of    the     assignor     as     provided     in 


72  Gen'l     Code, 

§  11708     (R. 

s. 

§f>415). 

is  Ambrose    v. 

Ryrne,    61     O. 

S. 

146. 

74  Gen'l     (ode. 

§  11710      (R. 

s. 

99  REAL    ESTATE    UNDER    JUDGMENTS.  §§133,131 

An  order  of  sale  issued  in  the  proceedings  for  the  foreclosure 
of  a  mortgage  is  not  an  execution  within  the  meaning  of  the 
terms  of  the  foregoing  statute.70 

Sec.  133.     New  appraisement  and  terms  of  sale  of  mortgaged 
premises. 

When  premises  are  ordered  to  be  sold,  and  having  been  twice 
advertised  and  offered  for  sale,  remain  unsold  for  want  of  bid- 
ders, the  court  from  which  the  order  of  sale  issued,  must,  on 
motion  of  the  plaintiff  or  defendant,  order  new  appraisement, 
and  may  also  order  that  the  land  he  sold  on  time,  as  fellows :  One- 
third  cash  in  band,  one-third  in  nine  months  from  the  day  of  sale, 
and  the  remaining  third  in  eighteen  months  from  the  day  of 
sale,  the  deferred  payments  to  draw  six  per  cent,  interest,  and 
to  be  secured  by  mortgage  on  the  premises.76 

Where  real  estate  is  being  ordered  sold  in  foreclosure  proceed- 
ings, and  has  been,  by  order  of  court,  appraised  three  times,  and 
thereafter  twice  advertised  and  offered  for  sale,  and  not  sold  for 
want  of  bidders,  the  court  is  empowered  to  direct  the  amount  for 
which  the  same  shall  be  sold. 

It  was  said  in  Brown  v.  Connecticut,  etc.,77  in  construing  the 
provision  of  these  statutes,78  that  "it  will  be  seen  that  the  lan- 
guage is  the  same  in  both  sections.  If  any  number  of  reappraise- 
ments  may  be  ordered  under  section  five  thousand  four  hundred 
and  sixteen  (Gen'l  Code,  §  11710),  it  would  appear  to  follow 
that  any  number  may  be  ordered  under  section  five  thousand 
four  hundred  and  seventeen  (Gen'l  Code,  §11711).  The  only 
difference  between  the  sections  being  that  under  section  five 
thousand  four  hundred  and  sixteen  the  court  may  direct  the 
amount  for  which  the  premises  may  be  sold,  and  under  Gen'l 
Code,  §  11711   (R.  S.  §  5-117)  may  order  a  sale  on  time." 

Sec.  134.     When  execution  to  be  returned. 

The  officer  to  whom  a  writ  of  execution  is  directed  is  required 
to  return  such  writ  to  the  court,  to  which  it  is  returnable  within 
sixty  days  from  the  date  thereof.79 

"Gen'l  Code,  §11710  and 
§  11711    i R.  S.   s  5416   and   §5417). 

19  Gen'l  Code.  §11712  l  R.  S. 
§5418).  See  Gen'l  Code,  s  12104 
(R.  S.  §  5596  t .  for  penalty  for  non- 
compliance with  thi*  statute. 


7-">  Brown    v.    Connecticut. 

etc.. 

,    6 

C     ('.    62. 

76  Gen'l     Code,     §  11711 

(R. 

S. 

§5417). 

"  6  C.  C.  67. 

§§  135,  13t)  MERWINE   ON   REAL    ACTIONS.  100 

In  case  where  by  decree  and  order  of  sale  a  sheriff  is  made  a 
special  master  commissioner  and  is  invested  with  full  power  in 
that  capacity  to  carry  into  effect  such  order  of  sale,  and  the 
sheriff  under  the  order  of  sale  causes  the  real  estate  to  be 
appraised  and  advertised,  and  had  not  fully  sold  it  before  the 
sixty  days  had  expired  within  which  he  was  ordered  by  the  writ 
to  make  return  of  it,  and  when,  upon  motion  of  plaintiff  to  grant 
an  alias  order  to  said  sheriff  for  an  extension  of  time  to  make  a 
return  of  the  former  order  of  sale,  it  was  ordered  that  the  sheriff 
have  further  time  to  make  return  of  said  former  order  and  ap- 
praisal and  sale  of  said  real  estate,  and  where  said  real  estate 
was  sold  after  the  expiration  of  said  sixty  days,  it  was  held  that 
such  proceedings  gave  the  purchaser  good  title  to  said  property.80 

Sec.  135.    How  judgment  against  principal  and  surety  entered — 
Execution  in  such  case. 

When  judgment  is  rendered  in  a  court  of  record  within  this 
State  upon  an  instrument  of  writing  in  which  two  or  more  per- 
sons are  jointly  or  severally  bound,  and  it  is  made  to  appear  to 
the  court,  by  parol  or  other  testimony,  that  one  or  more  of  the 
persons  so  bound  signed  the  same  as  surety  or  bail  for  his  or  their 
codefendant,  the  clerk  of  such  court,  in  recording  the  judg- 
ment thereon  must  certify  which  of  the  defendants  is  principal 
debtor  and  which  surety  or  bail ;  it  is  made  the  duty  of  the  clerk 
to  issue  execution  on  such  judgment,  commanding  the  officer  to 
cause  the  money  to  be  made  of  the  goods  and  chattels,  lands  and 
tenements  of  the  principal  debtor,  or,  for  want  of  sufficient  prop- 
erty of  the  principal  debtor  to  make  the  same,  that  he  cause  the 
same  to  be  made  of  the  goods  and  chattels,  lands  and  tenements 
of  the  surety  or  bail;  and  the  property,  both  personal  and  real, 
of  the  principal  debtor  within  the  jurisdiction  of  the  court,  must 
be  exhausted  before  any  property  of  the  surety  or  bail  can  be 
taken  in  execution.81 

Sec.  136.     Fee  of  appraisers  of  real  estate — Penalty  for  neg- 
lecting to  serve  as  an  appraiser. 

Each  appraiser  of  real  estate  under  the  provisions  of  the  fore- 
going sections  shall  receive  fifty  cents  per  day  for  his  service,  to 
be  collected  on  the  execution   by   virtue  of  which  the  property 

soXewcomb  v.   Receiver.  23  W    L.  bi  Gen'l     Code,     §11713      (R.     8. 

B.  75,  reversing  2  C.  C.  330.  §  5419). 


101  REAL    ESTATE    UNDER    JUDGMENTS.  §§  137,  138 

appraised  was  levied  on ;  and  when  any  freeholder,  summoned 
as  an  appraiser,  fails  to  appear  at  the  time  and  place  appointed 
by  the  officer  and  discharge  his  dnty  as  an  appraiser,  he  shall,  on 
complaint  made  1o  a  justice  of  the  peace  of  the  township  in  which 
he  resides,  forfeit  and  pay  the  sum  of  fifty  cents  for  every  such 
neglect,  unless  he  render  a  reasonable  excuse,  which  shall  be  col- 
lected by  the  justice  and  paid  into  the  township  treasury  for  the 
use  of  the  township.82 

In  an  action  where  the  appraisers  were  each  allowed  a  fee  of 
one  dollar  and  the  officer  swearing  the  appraisers  was  allowed 
forty  cents  for  each  appraiser,  on  motion  to  retax  costs,  the 
appraisers'  fees  were  each  reduced  to  fifty  cents,  and  the  officer 
for  swearing  the  appraisers  was  not  allowed  any  fee  for  the  rea- 
son that  the  statute  section  fifty-three  hundred  and  eighty-nine 
(Gen'l  Code,  §  11672)  requires  the  officer  making  the  levy 
to  administer  the  oath  to  the  appraisers,  but  it  provides  no  fee  to 
him  for  so  doing:  it  simply  requires  him  to  do  something  without 
compensation,  and  as  an  officer  he  is  bound  to  do  it  and  can  get 
no  fees  not  provided  by  the  statute.83 

Sec.  137.     Execution  may  issue  to  another  county  and  may  be 
returned  by  mail. 

When  execution  is  issued  in  any  county  and  directed  to  the 
sheriff  or  coroner  of  another  county,  the  sheriff  or  coroner  hav- 
ing execution  may,  after  having  discharged  all  the  duties  re- 
quired of  him  by  law,  transmit  such  execution,  by  mail,  to  the 
clerk  of  the  court  who  issued  it;  and  on  proof  made  by  such 
sheriff  or  coroner  that  the  execution  was  mailed  soon  enough  to 
have  reached  the  office  where  it  was  issued  within  the  time  pre- 
scribed by  law,  he  will  not  be  liable  for  any  amercement  or  pen- 
alty if  it  does  not  reach  the  office  in  due  time.8* 

Sec.  138.     The  execution  docket  and  what  it  should  contain — 
The  index  thereto. 

The  clerk  of  the  court  of  common  pleas  is  required  to  enter 
upon  the  execution  docket  the  names,  in  full,  of  the  parties  t<> 
the  case  in  which  the  execution  is  issued,  the  number  of  the  cause 

82  Gen'l     Code,     §11714      (R.     S.  elusive,    for    forms    and    for    proce- 

§  5420 ) .  dure   where   an   execution   is   issued 

»3  Home,  etc.,  v.  Hoskins,  6  N.  P.  to    another    county,   levy   made    and 

274.  execution     returned     and    property 

s*  Gen'l     Code,     §11716      (R.     S.  sold    under     petition      to     marshal 

§5421).      See    Nos.    14    to    47,    in-  liens. 


§§  139,140  MEttWINE   ON    REAL    ACTIONS.  102 

upon  the  appearance  docket,  the  number  of  execution,  the  date 
of  its  issue,  the  amount  of  the  judgment,  the  costs  due  each  per- 
son or  officer,  the  time  when  the  judgment  was  rendered,  and 
the  date  of  the  return,  and  the  return  must  be  recorded  therein  in 
full.85 

The  clerk  is  also  required  to  keep  an  index  to  the  execution 
docket,  showing  in  separate  columns  the  names  of  all  parties 
against  whom  and  in  whose  favor  an  execution  has  been  issued, 
the  number  of  the  execution,  and  the  number  of  the  case  upon 
the  execution  docket.86 

Sec.  139.  Proceedings  when  order  of  sale  issued  in  case  not 
on  trial  docket. 
When  an  order  of  sale  is  issued  in  a  ease  not  on  the  trial  docket, 
it  is  made  the  duty  of  the  clerk  to  enter  it  upon  the  execution 
docket,  and  enter  the  subsequent  proceedings  had  in  pursuance 
thereof,  in  the  same  manner  that  executions  and  proceedings 
thereon  are  entered;  when  a  sale  of  real  estate  is  made  in  pur- 
suance of  such  order,  it  must  be  confirmed  in  all  respects  as  sales 
on  executions  are  confirmed,  and  after  the  sale  the  officer  must 
be  governed  in  all  respects  by  the  law  relating  to  sales  on  ex- 
ecution. s7 

Sec.  140.  Failure  of  sheriff  to  perform  duties  required  in  con- 
nection with  sale  of  real  estate. 
It  is  provided  by  statute  that  if  an  execution  or  order  of  sale, 
directed  to  an  officer,  come  to  his  hand  to  be  executed,  and  he 
neglect  or  refuse  to  execute  it ;  or  if  he  neglect  or  refuse  to  sell 
property  of  any  kind  which,  by  any  writ  or  order,  he  is  directed 
to  sell,  or  fail  to  call  an  inquest,  or  to  return  to  the  clerk's  office 
a  copy  of  the  certificate  of  appraisement  made  by  the  inquest,  or 
neglect  to  return  to  the  proper  court  an  execution  or  order  of 
sale  to  him  directed,  on  or  before  the  return  day  thereof,  such 
officer  shall,  on  motion  in  court  and  notice  as  required  by  stat- 
ute ss  be  amerced  in  the  amount  of  such  judgment,  including  costs 
with  ten  per  cent,  thereon,  to  and  for  the  use  of  such  plaintiff  or 
defendant,  as  the  case  may  be.89 

^Gen'l  Code,     §11718      (R.     S.           «« Gen'l     Code,     §12103      ( R.     S. 

§  5423 ) .  §  5594 ) . 

so  Gen'l  Code,     §1171!)      ( R.     8.           ™  Gen'l     Code,     §12104      (R.     S. 

§5424).  §5595). 

87  Gen'l  Code,     §11720      (R.     S. 
§  5425 ) . 


FORMS. 


PROCERURE  WHERE  REAL  ESTATE  IS  SOLD  BY 

EXECUTION  ISSUED  ON  A  JUDGMENT  IN  A 

CIVIL  ACTION. 


FORMS. 

1.  The  petition.     Cognovit. 

2.  The  answer   in  cognovit. 

3.  The  judgment  by  confession. 

4.  The    execution     issued    in    the 

above  case. 

5.  Sheriff's    proceeding   under   the 

writ  of  execution. 

6.  The  precipe  for  order  of  sale. 

7.  The   order   of    sale    directed   by 

the    Clerk    to   the   Sheriff. 

8.  The  appraisement  ^f  real  estate 

under  the  writ. 


FORMS. 

9.  The  proof  of  publication  and 
notice  of  sale. 

Notice  of  sheriff's  sale  under 
the  vendi. 

Sheriff's  return  of  said   writ. 

The  order  of  the  court  approv- 
ing and  confirming  sale  by 
sheriff  and  ordering  deed. 

Sheriff's  deed  on  sale  of  real 
estate  under  an  execution. 


10 

11 
12 


13 


Petition — Cognovi  t. 


No.  1.     The  petition  in  such  case. 

A.  B.  S.  Company, 

Plaintiff, 

vs. 

B.  T.  R., 

Defendant. 

The  plaintiff  says  that   it  is  a  corporation  duly   incorporated   and   or- 
ganized under  the  laws  of  the  State  of  Ohio,  having  its  banking  house  and 

principal    place   of    business    in    the   City   of   ,    in    the    County    of 

,  Ohio;    that  this,  its  action,   is  founded  upon   a  promissory  note 


of    which    the    following    is    a    copy,    with    all    endorsements    and    credits 
thereon: 


$- 


-,  Ohio, 


-,    19- 


On   demand   after   date,    for    value   received,   we    jointly   and    severally 

promise  to  pay   to  A.  S.   B.  Company,   at   its  banking   house  in  , 

Ohio,  the  sum  of  dollars,   witli   interest   thereon   at   the   rate  of 


per  cent,  per  annum,  payable 
103 


annually  after  date  until   paid, 


MERWINE    ON    REM,    ACTIONS.  104 

and  we  jointly  and  severally  hereby  authorize  any  attorney-at-law  to  ap- 
pear for  us,  or  any  of  us,  in  an  action  on  the  above  note,  at  any  time 
after  the  same  becomes  due,  in  any  court  of  record,  in  the  State  of  Ohio, 
to  waive  the  issuing  and  service  of  process  against  us,  or  any  of  us,  to 
confess  judgment  in  favor  of  the  legal  holder  of  said  note  against  us,  or 
any  of  us,  for  the  amount  that  may  then  be  due  on  said  note,  at  the  rate 

of  interest  therein   stipulated,  and  for  process  of  suit,  and  to  waive 

and  release  all  errors  in  said  proceedings  and  all  right  to  prosecute  a  pe- 
tition in  error  upon  such  judgments  or  proceedings. 

Said  note  being  endorsed  as  follows: 

$ .  ,  19 . 


There  is  due  the  plaintiff  from  the  defendant  on  said  note  the  sun  of 

$ .    which    it    claims    with    interest    from    day    of    , 

19 ,  at per  cent,  per  annum,  payable  annually  until  paid, 

and  for  which,  with  costs  of  suit,  it  asks  judgment  against  the  defendant. 

Attorney  for  Plaintiff. 
Verified  as  in  other  cases. 


No.  2.     The  answer  in  cognovit. 

A.  B.  S.  Company, 

Plaintiff, 
vs. 

B.  1 .  R., 

Defendant. 

The   defendant,  B.   P.   R.,  by ,  attorney,   and  an  attorney  of 

record  in  this  court,  duly  authorized  therefor  by  the  warrant  of  attorney 
embraced  in  the  note  sued  on  in  this  suit,  and  which  note,  with  the  ac- 
companying   warrant    of    attorney    is    produced,   now    comes    and 

waives  the  issuing  and  service  of  process  in  this  action,  and  hereby  enters 

his  appearance  of  said  defendant  herein,  and  said  defendant,  by , 

said  attorney,  duly  authorized  as  aforesaid,  says  he  cannot  gainsay  or 
resist  the  facts  stated  and  allegations  in  the  petition  of  said  plaintiff 
herein  filed  against  him,  but  acknowledges  and  confesses  the  same  to  be 
true,  and  says  he  is  indebted  to  the  plaintiff  on  the  said  note  in  manner 
and  form  as  the  plaintiff  has  in  its  petition  set  forth,  and  that  the  amount 

due  upon  said   indebtedness,  at  this   day,  is  the   sum  of  dollars, 

bearing    interest    at   per    cent,    per   annum,    payable   annually 

until    paid,   and    therefore  for   that   sum,  with    interest   from   the  day 

of  — — .  19 .  at  per  cent,  per  annum,  payable  annu- 
ally until  paid,  according  to  process,  he  confesses  judgment  in  favor  of 
plaintiff,  and  waives  and  releases  all  errors  in  this  proceeding  and  all 
right  to  prosecute  a  petition  in  error  upon   such  judgment  or  proceeding. 


Attorney  for  Defendant. 


105  FORMS. 

No.  3.     The  judgment  by  confession. 

A.  B.  S.  Company, 

Plaintiff, 
vs. 

B.  T.  R., 

Defendant. 

This  day  came  the  plaintiff,  by  plaintiff's  attorney,  and  files  its  peti- 
tion  against   said   defendant.   B.   P.   R. ;    and   thereupon   ,  one  of 

the  attorneys  of  record  of  this  court,  also  appeared  in  open  court  for 
and  on  behalf  of  said  defendant,  B.  P.  R.,  and  who,  by  virtue  of  a  war- 
rant of  attorney  for  that  purpose  duly  executed,  now  produced  in  open 
court,  and  duly  proven,  waived  the  issuing  and  service  of  process,  and 
entered  the  appearance  of  said  defendant  herein,  and.  by  virtue  of  the 
same  warrant  of  attorney,  confessed  that  there  is  due  from  said  defendant 
to   said    plaintiff,   as    is    alleged   in    said    plaintiff's    petition,    the    sum   of 

dollars,   bearing  interest   at  per  cent,   per   annum,   payable 

annually    until    paid,    and   that   said    plaintiff   ought   to   recover   of 

said  defendant  a  judgment  for  that  sum. 

It   is   therefore  considered   by   t  he   court   that   said   The   A.   S.    B.   Com- 
pany,  plaintiff,   do   recover  from   said   B.   P.   R.,   defendant,   the  said   sum 

of   dollars    so    as    aforesaid    confessed    to    be    due.   together    with 

costs  of  suit  herein  to  be  taken,  and  with  interest  to  be  computed  from 
the  day  of  ,    If) ,  at  the  rate  of  per  cent.,  payable 

annually   until    paid,    and    by    virtue   of   said   warrant   of    attorney 

all  errors  in  these  proceedings  are  released,  and  all  rights  of  prosecuting 
a    petition   in  error   upon   such    judgment   or   proceeding  are   waived. 


No.  4.     The  execution  issued  in  the  above  case. 

State  of  Ohio.  County,  ss.: 

To  the  Sheriff  of  County,  Greeting: 

YVitf.reas.  In  a  certain  cause  recently  pending  in  our  Court  of  Com- 
mon Pleas  within  and  for  said  county  of  .  The  A.  S.  B.  Com- 
pany, plaintiff  in  said  cause,  by  the  consideration  of  said  court,  on  the 
day   of  ,    1!) .   recovered   judgment    against   B.    P.   R,.   de- 


fendant   in    said    cause,    for   the   sum    of  $ ,    with    interest    thereon 

at per  cent,  from  ,  and  $ .  as  of  record,  is  manifest. 

You  are  therefore  commanded  that  the  goods  and  chattels,  and  for 
the  want  thereof  of  the  lands  and  tenements  of  the  said  defendant,  B.  P 
R.,  you  cause  to  be  made  the  said  several  sums  of  money,  with  interest 
thereon    from   the   day    and    year    aforesaid   until    paid,   and    also   the    sum 

of   $ .    and    cost    of    increase   on    said    judgment,   and   the   accruing 

costs,  and   that  you   have   the  said   money  before  our   said   Courl    of  Com- 
mon  Pleas  in  sixty  days   from   the  date  hereof. 

Witness  .   Clerk   of  our  said  'Court   of  Common   Pleas,  this 

day   of  .    19 . 


MEBWINE    ON    REAL    ACTIONS.  106 

No.  5.     Sheriff's  proceedings  under  the  writ  of  execution. 

iState  of  Ohio,  County,  ss. : 

Received   this  writ  ,   19 ,  at  o'clock  —  M.,  and  pur- 
suant  to   its   command   having,   after   diligent   inquiry,   found   no   goods   or 

chattels  whereon  to  levy,  I  did,  on  the  day  of  ,   19 ,  levy 

this   writ  on    tlie    following   described    lands   and   tenements   of   the    within 

named  B.  P.   R.,   situated   in   the  county  of  and   State  of   Ohio, 

and  more  particularly  bounded  and  described  as  follows:  (Here  insert 
description  of  said  real  estate.)  And  this  writ  is  returned  for  want  of 
time  for  further   proceedings. 


Sheriff. 

No.  6.    The  precipe  for  order  of  sale. 

A.  B.  S.  Company, 

Plaintiff, 
vs. 

B.  T.  R., 

Defendant. 

To  the  Clerk  of  the  Common  Pleas  Court,  County,  Ohio: 

Issue  a  venditioni  exponas  in  the  above  action  directed  to  the  sheriff 

of  County,  Ohio,  returnable  according  to  law. 

» 
Attorney  for   Plaintiff. 

No.  7.    The  order  of  sale  directed  by  the  clerk  to  the  sheriff. 

A.  B.  S.  Company, 

Plaintiff, 
vs. 

B.  T.  R., 

Defendant. 

State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  County,  Greeting: 

We  command  you   that,   to   satisfy   a  judgment   which,  by   the   consid- 
eration   of    our  Court   of   Common    Pleas,   within    and    for   said   county   of 

.  on  tlie  day  of  ,  19 ,  recovered  against  B.  P.  R. 

for  the  sum   of  $ ,  with   interest  thereon  from  the  day  and   year 

above  stated  until  paid,  and  also  the  costs  of  increase  thereon,  amounting 
to  <j5 ;  and  accruing  costs,  you  expose  for  sale  the  following  de- 
scribed  lainls  and  tenements  of  B.  P.  R.,  situated  in  the  county  of  , 

State  of  Ohio,  bounded  and  described  as  follows:  (Here  insert  re-,il  es- 
tate) which,  according  to  our  command,  you  lately  took  into  your  hands, 
and  which  remain  unsold;  and  if.  in  your  opinion,  the  property  remain- 
ing in  your  hands  not  sold  should  be  insufficient  to  satisfy  said  judg- 
ment, then  you  are  hereby  commanded  that  you   levy  the  sane  upon  the 


107  FORMS. 

goods  and  chattels,  lands  and  tenements,  or  either,  as  the  law  shall  per- 
mit, being  the  property  of  the  said  judgment  debtor,  together  with  the 
said  property  on  hands,  which  will  be  sufficient  to  satisfy  said  judgment, 
and  that  you  have  said  money  before  our  said  Court  of  Common  Plead 
within  sixty  days,  to  render  unto  said  party  so  recovering  the  sain.',  as 
above  stated,  and  have   then   and  there  this  writ. 

Witness, ,  Clerk  of  our  said  Court  of  Common  Pleas,  this 

day  of  ,   19 . 


Clerk. 

No.  8.     The  appraisement  under  the  writ. 

State  of  Ohio,  County,  ss. : 

Personally  appeared  before  me,  ,  Sheriff  of  County 

aforesaid,  the  above  named — — ,  and  ,  ap- 
praisers aforesaid,  who  are  judicious,  disinterested  freeholders  and  citi- 
zens of  said  county  of  ,  and  were  personally  sworn  according  to 

law  to  discharge  the  duties  of  their  appointment. 

Witness  my  hand  this  day  of  ,  19 . 


Sheriff. 

To  the  Sheriff  of  County,  Ohio,  as  aforesaid: 

Tn  pursuance  of  the  foregoing  appointment,  we  have  proceeded  to  view 
the  real  estate  and  premises  above  described,  and  from  actual  view  of  the 
same  we  do  estimate  the  real  value  thereof  in  money  to  be  $ . 

Given  under  our  hands  and  seals  this  day  of  ,   19 . 


Appraisers. 

No.  9.     Proof  of  publication  and  notice  of  sale. 

State  of  Ohio,  County,  ss. : 

D.  E.  D.j  cashier  for  the  ,  a  newspaper  published  at.  

County,    Ohio,    personally    appeared    and    made    oath    that    the    attached 

printed    advertisement    was    published   for  consecutive   weeks   in   said 

newspaper  from  and   after  ,    19 .    and   that   said    newspaper   is 

of  general  circulation  in  said  county  and   State. 

D.    K.  D. 

Sworn  to  and  subscribed  in  my  presence  on  this  day  of  , 


19- 


Notary   Public. 


MERWINE    ON    REAL   ACTIONS.  108 

No.  10.    Notice  of  sheriff's  sale  under  the  vendi. 

Sheriff's  Sale  of  Real  Estate. 

A.  B.  S.  Company, 

Plaintiff, 
vs. 

B.  T.  R., 

Defendant. 

In   pursuance  of  a   venditioni  exponas  to  me  directed  from  tlie   Clerk 

of  the  Court  of  Common   Pleas  of  County,  Ohio,  I  will  oiler  for 

sale  at  public  auction,  at   the  door  of  the  court   house  in  the , 

County,  Oliio,  on  ,  the   day  of  ■ ,    19 , 


at  o'clock  —   M.,  the  following   real  estate:       (Here  describe  it.) 

Said  real  estate  is  known  as  No.  on  street  in  said  city. 

Appraised  at  $ . 

Terms   of    sale,   cash. 


Sheriff  of  County,  0. 


Attorneys  for  Plaintiff. 
Publication  in  German  newspaper  dispensed  with. 

No.  11.     Sheriff's  return  of  said  writ. 

State  of  Ohio,  County,  ss. : 

In   obedience   to  the   command   of   this  writ,   which  was   served   on   me 

on  the  day  of  ,  19 ,  at  o'clock  —  m.,  I  did  on  said 

day  levy  the  same  upon  the  interest  of  the  within  named  B.  P.  R.  in  and 

to  the  following  lands  and  tenements,  situated  in  the  county  of  

and  State  of  Ohio,  and  bounded  and  described  as  follows:     (Here  describe 

said  real  estate)    and  thereafter,  on  the  day  of  .   19 ,  I 

did    summon    ,    and    ,    three    disinterested 

freeholders  resident  of  said  county,  who  were  by  me  duly  sworn  to  im- 
partially appraise  the  lands  and  tenements  described  in  the  foregoing 
writ  and  return   herein   upon   actual   view,   and   afterward,  to-wit.   on  the 

day    of   ,    19 ,    said    appraisers    returned    to    me.    under 

their  hands  and  seals,  that  they  did,  upon  actual  view  of  the  premises, 
estimate  and  impartially  appraise  the  real  value  in  money  of  the  same,  as 
follows:  $ ,  a  certified  copy  of  which  appraisal  1  forthwith  de- 
posited in  the  office  of  the  Clerk  of  the  Court  of  Common  Pleas  of  said 

county,  and  on  the  day  of  .  19 ,  I  caused  to  be  inserted 

in  ,  a  newspaper  published  and  printed  in  the  English  language, 

and  in  ,  a  newspaper  published  and  printed  in  the  German  lan- 
guage, both  of  general  circulation  in  said  county,  said  lands  and  tene- 
ments  to  be   sold  at  public   sale  at  the   door   of  the   court  house  of   said 

county   on   the   day   of   .    19 ,   at  o'clock   —   m.   of 

said  day-,  and,  having  advertised  the  lands  and  tenements  to  be  sold  at 
public  sale  at  the  door  of  the  court  house  for  more  than  thirty  days  pre- 
vious to  the  day  of  sale,  to-wit,  five  consecutive  weeks,  on  the  same  day 
of  the  week  in  each  week;   and   in  pursuance  of  said  notice  I  did.  on  the 


109  FORMS. 


day   of   ,    19 ,   at   the   time    and    place    above    mentioned, 


proceed   to  oiler  said   lands  and   tenements   at   public  sale  the  door  of 

said   court   house;    and   then   and   there   came   G.   S,    K.,   who   bid   for   the 

same   the   sum   of   $ .  and   said   sum    being   more   than    two-thirds 

the  appraised  value  thereof,  and  said  (i.  S.  K.  being  the  highest  and  best 
bidder  therefor,  I  then  and  there  publicly  sold  and  struck  off  said  lands 
and  tenements  to  him  for  said  sum  of  $ . 


Sheriff. 

No.  12.     The  order  of  the  court  approving  and  confirming  sale 
by  sheriff  and  ordering  deed. 

A.  B.  S.  Company, 

Plaintiff, 
vs. 

B.  T.  R., 

Defendant. 

On  this  day  of  ,  19 ,  this  cause  came  on  to  be  heard 

upon  the  execution  and  order  of  sale  herein  issued  and  the  return  thereof 

by   the    sheriff   of   County,   the    appraisement    herein    made    and 

filed,  the  proof  of  publication  by  said  sheriff  of  the  notice  of  sale  by 
public  auction  of  the  premises  mentioned  and  described  in  the  levy  made 
by  said  sheriff  under  said  writ,  and  duly  set  forth  in  said  return  thereof, 
and  upon  the  pleadings  herein,  and  was  submitted  to  the  court,  and  upon 
consideration  whereof,  and  being  fully  advised  in  the  premises,  the  court 
finds  that,  under  said  writ  duly  issued  herein,  said  sheriff  duly  levied 
the  same  upon  the  following  described  real  estate  situated   in    the  county 

of  ,   in   the  State  of   Ohio,   and   in   the   city   of  ,   to-\vit : 

(Here  describe  real  estate)  that  said  real  estate  was  duly  appraised 
under  said  writ  by  said  sheriff  in  the  sum  of  $ .  as  in  said  ap- 
praisement set  out;  that  said  sheriff  gave  due  notice  by  publication  of 
the  time  and  place  of  the  public  sale  of  said  real  estate,  according  to  the 
statute  in  such  case  made  and  provided;  that,  pursuant  to  said  notice, 
said   sheriff,   at   said   time   and   place,   duly   struck   off   and   sold   said    real 

estate  at  public  auction  to  G.  S.  K.,  as  in  said  return  set  out,  for  $ , 

said  G.  S.  K.  being  the  highest  and  best  bidder  for  said  real  estate,  and 
said  sum  being  more  than  two-thirds  of  said  appraised  value  thereof; 
that  the  facts  set  out  in  said  return  of  said  writ,  and  in  said  appraise- 
ment, and  in  said  proof  of  publication  are  true,  and  that  said  proceed- 
ings of  said  sheriff  under  said  writ,  said  appraisement  and  said  sale  of 
said  real  estate  aforesaid  to  said  G.  S.  K.,  should  in  all  thing-  be  ap 
proved   and  confirmed. 

It   is   therefore    by    the    court   considered,    adjudged    and    decreed,    that 
said   appraisement,   said   proceedings   of  said    sheriff  and   sale  of  said   real 

estate  to  said  G.   S.  K.  for  said  sum  of  $ be,  and   the  same  are, 

hereby  in  all  things  approved  and  confirmed,  and  said  sheriff  is  herein- 
ordered  and  directed  to  execute,  acknowledge  and  deliver  to  said  G.  S.  K. 
a  good  and  proper  deed  for  said  premises  upon  the  payment  to  him  of 
said  purchase  price. 


MERWINE    ON    REAL    ACTIONS.  110 

And,  coming  to  the  proper  distribution  of  the  proceeds  of  said  sale, 
it  is  by  the  court  considered,  adjudged  and  decreed  that  out  of  said  pro- 
ceeds said  sheriff  shall  pay: 

1.  The  taxes  and  penalty  thereof  due  and  payable  on  said  real  estate, 

amounting    to    the    sum    of    dollars,    and    the    sum    of    

assessed  for  sweeping  and  cleaning  street  for  the  year  , 

to  the  Treasurer  of  said  county. 

2.  The  cost  of  this  action,  taxed  in  the  sum  of  dollars. 

3.  To  plaintiff  to  apply  as  a  credit  on   its  judgment  herein. 

No.  13.     Sheriff 's  deed  on  sale  of  real  estate  under  an  execution. 

To  all  Persons  to  whom   these  Presents  shall  come,  Greeting: 

Whereas,  On  the  day  of  ,  19 ,  The  A.  S.  B.  Com- 
pany filed   its   certain   petition,  and  then  and  thereby  commenced   a  civil 

action  in  the  Court  of  Common  Pleas,  County,  against  B.  P.  R., 

and  numbered  on  the  docket  of  said  county  as  case  No.  ,  praying, 

among  other  things,  for  judgment  against  the  said  defendant;   and 

Whereas,  Such  proceedings  were  had  in  said  action  that,  by  the  con- 
sideration   and    judgment    of    said    court,    at    the    term    thereof, 

19 ,   the   said   The   A.    S.    B.    Company   recovered   a    judgment   against 

said  B.  P.  R.  for  the  sum  of  dollars  and  costs  of  suit;   and 

Whereas,   The  said  The  A.  S.  B.  Co.  afterwards,  to-wit,  on  the  

day  of  ,   19 ,  sued  out  of  the  clerk's   office  of  said  court  an 

execution    on    said    judgment    directed    to    the    sheriff    of    the    county    of 

and    State   aforesaid,   commanding   him    that   of   the   goods   and 

chattels,  and  for  the  want  thereof  of  the  lands  and  tenements  of  the  said 

B.  P.  R.  in  said  county  of  ,  he  caused  to  be  levied  and  made  the 

amount  of  said  judgment  and  costs,  which  execution  duly  came  to  the 
hands  of .  sheriff  of  said  county  of ,  which  said  exe- 
cution was  afterwards,  to-wit,  on  the  day  of  ,  19 ,  re- 
turned to  said  court  of  common  pleas  by  the  said  sheriff,  with  a  levy 
upon  the  lands  and  tenements  hereinafter  described,  as  the  property  of 
the  said  B.  P.  R.;    and 

Whereas,   Afterwards,   to-wit,  on   the   day   of  ,    19 , 

the  said  The  A.  S.  B.  Co.  sued  out  of  the  clerk's  office  a  venditioni  ex- 
ponas directed  to  the  sheriff  of  said  county  of  ,  commanding  him 

to  expose  to  sale  the  lands  and  tenements  levied  upon  as  aforesaid,  by 
virtue  of  the  execution  aforesaid,  to  satisfy  the  judgment  aforesaid,  and 
of  said  writ,  with  his  proceedings  thereon,  he  should  make  due  return; 
and 

Whereas,  I,   the  said  ,  sheriff  aforesaid,   having  caused  said 

premises  to  be  appraised  and  a  copy  of  the  appraisement  to  be  duly  filed 
in  the  office  of  the  clerk  of  said  court,  and  having  advertised  the  time 
and  place  of  selling  the  same  in ,  a  newspaper  printed  and  pub- 
lished in  the  German  language,  and  both  printed  and  of  general  circula- 
tion in  said  county,  for  more  than  thirty  days  prior  to  the  day  of  sale, 
and  otherwise  complied  with  the  said  writ  and  the  provisions  of  the  stat- 
ute in  such  cases  made  and  provided,  did,  on  the  day  of  , 


Ill  FORMS. 

19 ,  at   the  door  of  the   court   house   in   said   county,   at  o'clock 

—  M.  of  said  day,  expose  to  sale,  at  public  auction,  the  premises  herein- 
after   mentioned,    and    thereupon   G.    S.   K.,   having   bid    for   said    premises 

the   sum   of   $ ,   which   said  sum   being   the   highest  and   beat    bid 

offered  for  the  same,  and  more  than  two-thirds  the  appraised  value 
thereof,  the  said  premises  were  then  and  there  struck  off  to  him,  the  said 
G.  S.  K.j  the  purchaser,  for  the  sum  above  mentioned;    and 

Whereas,  The  said  court,  at  its  term,   19 ,  having  exam- 
ined   the    proceedings   of    the    said   ,    sheriff    aforesaid,    and    the 

premises  under  said  writ,  and  being  satisfied  that  the  sale  aforesaid  had 
been  made  in  all  respects  in  pursuance  thereof,  and  in  accordance  with 
the  provisions   and   requisitions  of  the  statute   regulating  such   sales,   did 

order  that  such  sale  should  be  confirmed,  and  that  said  sheriff  of  

County  should  convey  the  said,  real  estate  by  deed  in  fee  simple  to  the 
purchaser,  G.  S.  K. 

Now,  Know  Ye,  That  I,  the  said  ,  sheriff  of  said  county  of 

,  by  virtue  of  said  judgment,  writs,  sale  and  confirmation,  and  of 

the  statute  for  such  cases  made  and  provided,  and  for  and  in  considera- 
tion of  the  premises  herein,  and  the  sum  of  $ ,  which  I  acknowl- 
edge to  have  received  from  the  said  G.  S.  K.,  do  hereby  grant  and  convey 
unto  him,  the  said  G.  S.  K.,  his  heirs  and  assigns  forever,  the  following 

described  real  estate  situated  in  County  and  State  of  Ohio,  and 

in  the  of  ,  and  more  particularly  described  as  follows, 

to-wit:  (Here  insert  description  of  real  estate^  together  with  all  the 
privileges  and  appurtenances  thereto  belon"inLr,  and  all  the  right,  title  and 
interest  of  the  said  B.  P.  R.  and  all  the  other  parties  of  suit  of,  in  and 
to  the  same. 

To    Have    and    to    Hold    the    premises    aforesaid    unto    the    said    G. 
S.  K.,  his  heirs   and  assigns  forever,   as  fully  and  completely  as  the  said 

,  sheriff  of  County,  by  virtue  of  said  judgment,  writs. 

sale  and  confirmation,  and  of  the  statute  made  and  provided  for  such 
cases,  might  and  should  sell  and  convey   the  same. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  this  day  of 

,   19 .  , 

Sheriff  of  County,  O. 

Signed  and  acknowledged  in  the  presence  of 


State  of  Ohio,  County,  ss. : 

Personally    appeared  before   me,   a   notary   public  within    and    for    said 

county  of  ,  the  sheriff  of  -County,  Ohio,  flic  grantor  in 

the  above  deed  of  conveyance,  who  acknowledged  f  he  signing  of  the  same 
to  be  his  voluntary  act  and  deed  for  the  uses  and  purposes  therein  men- 
tioned. 

In  Witness  Whereof.  I  have  hereunto  set  my  hand  and  seal  this  

day  of  ,19 . 


Notary  Public  within  and  for  County,  Ohio. 


MERWINE   ON    REAL    ACTIONS.  112 


PROCEEDING  FOR  SALE  OF  REAL  ESTATE  WHERE 

JUDGMENT  IS  ENTERED  IN  ONE  COUNTY  AND 

EXECUTION  IS  SENT   TO   ANOTHER. 

FORMS.  FORMS. 

14.  The  petition  under  which  judg-       19.     Execution  issued  to  the  sheriff. 

ment  is  entered.  20.     Sheriff's    return    of   the   execu- 

15.  The   precipe.  tiun. 

16.  The   summons.  21.     Execution  issued  to  the  sheriff 

17.  The    sheriff's    return  of    sum-                    of  another  county. 

mons.  22.     Sheriff's  return  of  his  proceed- 

18.  Default  judgment  on  this  peti-  ings  under  the  writ  of  execu- 

tion, tion. 

No.  14.     Petition  under  which  judgment  is  entered. 

Court  of  Common  Pleas,  County,  Ohio. 

B.  T.  Company, 

Plaintiff, 

vs  No.  . 

L.  F.  T.,  I.  W.  G.  and 
A.  H.  P., 

Defendants. 

PETITION. 


Plaintiff  is  a  corporation  duly  incorporated  under  the  laws  of  the 
State  of  Ohio,  not  for  profit,  having  its  usual  place  of  business  in 
.  Ohio. 

Plaintiff  says  that  this,  its  action,  is  founded  on  a  promissory  note 
of  which  the  following  is  a  copy,  there  being  no  credits  or  indorsements 
thereon: 

$ .  ,   Ohio,  ,    19 . 


year   after   date   I   promise   to   pay  to  the  order  of  The  B.  T. 

Company  dollars  at  per  cent,  per  annum. 


There   is  due   plaintiff  from   the   defendant   the   sum   of  $ on 

said  note,  which  it  claims,  with   interest  from  the  day  of  , 

19 ,  and  for  which   it  prays  judgment  against  said  defendant. 

Verification  as  in  other  actions. 

No.  15.     Ine  precipe. 

To  the  Clerk: 

Please  issue  summons  in  the  above  action  for  the  defendants  L.  F.  R., 
I.  W.  G.  and  A.  H.  P.,  directed  to  the  sheriff  of  County,  and  re- 
turnable   according   to   law.      Indorse:     "A   civil    action   on   a    promissory 


113  FORMS. 

note  for  $ ,  with  interest  thereon  at  per  cent,  from  the 

day  of  ,  19 ." 


Attorney  for  Plaintiff. 

No.  16.     The  summons. 

State  of  Ohio,  County,  ss. : 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  commanded  to  notify  L.  F.  T.,  I  W.  G.  and  A.  H.  P.  that 
they  have  been  sued  by  B.  T.  Company  in  the  Court  of  Common  Pleas  of 

County,  and   that,  unless  they  answer  by  day  of  , 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and ,  the  pel  i- 

inia  of  said  plaintiff  against  them,  tiled  in  the  clerk's  office  of  said  county, 
will  be  taken  as  true,  and  judgment  rendered  accordingly. 

You  will  make  due  return  of  this  summons  on  the day  i  f  ■ — -, 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and  . 


Cleric  Court  of  Common  Pleas,  County,  Ohio. 

No.  17.     The  sheriff's  return  of  summons. 

Sheriff's    Return. 

The  State  of  Ohio.  County,  ss. : 

Received    this    writ    in    the    year    of    our   Lord    one   thousand 

nine   hundred  and  .   at  o'clock  —  M.,  and,    pursuant  to   its 

command,  on  .  in  the  year  of  our  Lord  one  thousand  nine  hun- 
dred and  — — .  1  served  the  same  by  leaving  a  true  and  duly  certified 

copy  of  this  writ,  with  all  the  indorsements  thereon,  at  the  usual  place 
of  residence  of  each  of  the  following  of  the  within  named  defendants: 
L.  F.  R.,  I.  W.  G.  and  A.  H.  P. 

No.  18.     Default  judgment  on  this  petition. 

B.  T.  Company, 

Plaintiff, 

vs.  No.  . 

L.  F.  T.,  I.  W.  G.  and 
A.  H.  P.. 

Defendants. 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  and  the  evi- 
dence, and  the  defendants,  and  each  of  them,  having  been  duly  served  with 
summons,  and  each  being  in  default  for  answer  or  demurrer  to  the  peti- 
tion, the  court  finds  the  allegations  confessed  by  them  to  l>e  true,  and  that 
there  is  due  plaintiff  from  said  defendants  the  sum  of  $ ,  with  in- 
terest  thereon  from  the  day  of  .    19 .  at  per   cent. 

It  is  therefore  considered  by  the  court  that   the  plaintiff  recover  from 

said  defendants  said  sum  of  $ ,  with  interest  thereon  at  per 

cent,  from  the  day  of  -,   19 ,  and  for  costs  of  suit  herein 

expended,  taxed  at  dollars. 


MERWINE    ON    REAL,   ACTIONS.  114 

No.  19.     Execution  issued  to  the  sheriff. 

The  State  of  Ohio.  County,  ss.: 

To  the  Sheriff  of  ,  Greeting: 

Whereas,  In  a  certain  cause  lately  pending  in  our  Court  of  Common 

Pleas  within  and  for  said  county  of  ,  B.  T.  Company,  plaintiff  in 

said  cause,  by  the  consideration  of  said  court,  on  the  day  of  , 

A.  D.  19 ,  recovered  judgment  against  L.  F.  R.,  I.  W.  G.  and  A.  H.  P., 

defendants  in  said  cause,  for  the  sum  of  $ .  with  interest  at  

per  cent,  from  ,  19 ,  and  $ costs,  as  of  record  mani- 
fest. 

You  are  Therefore  Commanded,  That  the  goods  and  chattels,  and,  for 
the  want  thereof,  of  the  lands  and  tenements  of  the  said  defendants, 
L.  F.  R.,  I.  W.  G.  and  A.  H.  P.,  you  cause  to  be  made  the  several  sums  of 
money,  with  interest  thereon  from  the  day  and  year  aforesaid,  until  paid, 

and   also   the   sum  of  $ ,   the  costs  of   increase   on   said   judgment, 

and  the  accruing  costs,  and  that  you  have  the  said  money  before  our  said 
Court  of  Common  Pleas  in  sixty  days  from  the  date  hereof,  to  render  to 
the  said  plaintiff,  and  have  then  and  there  this  writ. 

Witness, ,   Clerk  of  our  said  Court  of  Common  Pleas,  this 

day  of  ,  A.  D.  19 . 


By 


(Jlerk, 


Deputy. 


No.  20.     Sheriff's  return  of  the  execution. 

Sheriff's   Return. 

The  State  of  Ohio,  : County,  ss. : 

Received  this  writ .  A.  D.   19 ,  at  o'clock  —  M., 

and,  pursuant  to  its  command,  no  goods,  chattels,  lands  or  tenements  found 
whereon  to  levy  this  writ,  and  for  want  of  same  this  writ  is  returned  this 
day  of  ,  19 . 


Sheriff. 

No.  21.     Execution  issued  to  the  sheriff  of  another  county. 

The  State  of  Ohio,  County,  ss. : 

To  the  Sheriff  of  County,  Greeting: 

Whereas,  in  a  certain  cause,  lately  pending  in  our  Court  of  Common 

Pleas,  within  and  for  said  county  of  ,  B.  T.  Company,  plaintiff  in 

said  cause,  by  the  consideration  of  said  court,  on  the day  of  , 

A.  I).  19 .  recovered  judgment  against  L.  F.  R.,  I.  W.  G.  and  A.  II.  P., 

defendants  in  said  cause,  for  the  sum  of  $ ,  with  interest  at  

per  cent,  from  ,   19 ,  and  $ costs,  as  of  record  mani- 
fest. 


115 


FORMS. 


You  are  Therefore  Commanded,  That  the  poods  and  chattels,  and, 
for  the  want  thereof,  of  the  lands  and  tenements  of  the  said  defendant 
I.  W.  G.,  you  cause  to  l>e  made  the  said  several  sums  of  money,  with  in- 
terest thereon  from  the  day  and  year  last  aforesaid,  until   paid,  and  al><> 

the   sum   of   $ ,   the  costs   of   increase    on   said   judgment,    and    the 

accruing  costs,  and  that  you  have  the  said  money  hefore  our  said  Court 
of  Common  Pleas  in  sixty  days  from  the  date  hereof,  to  render  to  the  said 
plaintiff,  and  have  then  and  there  this  writ.  

Witness,  ,  Clerk  of  our  said  Court  of  Common  Pleas,  this 

day  of  ,  A.  D.  19 — — . . 

Clerk. 

No.  22.     Sheriff's  return  of  his  proceedings  under  the  writ  of 
execution. 

Sheriff's  Return. 


The  State  of  Ohio, 


Received  this  writ 


"ounty,  ss. : 
-.  A.  D.  19- 


at 


o'clock 


M.,  and. 


pursuant  to  its  command,  on   the  same  day,   and   for  want  of  goods  and 
chattels  whereon  to  levy,   I   levied  this  writ  upon  the  following  descrihed 
real  estate,  to-wit:      (Here  follows  description  of  real  estate.) 
I  now  return  this  writ  without  further  proceedings  thereon. 


Sheriff. 


PROCEEDINGS  TO  SET  ASIDE  FRAUDULENT  DEED 

AND  FOR  SALE  OF  REAL  ESTATE  TO  SATISFY 

JUDGMENT   AND    MARSHALLING   LIENS. 


FORM. 

23.  The   petition    in    such    case. 

24.  The    summons    and    the     sher- 

iffs    order      of      service      of 
same. 

25.  The   answer. 

26.  The   answer   and   cross-petition 

of  another  defendant. 

27.  Decree   setting   aside   deed    and 

ordering  sale  of  real  estate. 

28.  The    order    of    sale    from    the 

clerk   directed   to   the   sheriff. 

29.  Proof  of  publication  and  notice 

of  sale. 

30.  Notice  of  sheriff's   sale  of  real 

•  ■state. 

31.  The  sheriff's  return  of  the  sale. 

32.  Motion  to  confirm  sale  and  ap- 

portion costs. 


FORM. 

33.  Order   of   the  court    confirming 

sale  and  ordering  deed. 

34.  Sheriff's  deed    in  such   case. 

35.  Petition  for  sale  of  real  estate 

upon      levy     made     under     a 
foreign  execution. 

36.  Summons  in  such  ease  and  the 

sheriff's    return. 

37.  Summons     to     another     county 

and      the      sheriff's      return 
thereof. 

38.  Answer  and   cross-petition  pet- 

ting up   a   life  estate  on   said 
real   estate. 

39.  Answer     of     judgment     debtor. 

General  denial. 

40.  Answer    of    a    mortgage    lien- 

holder  setting  up  mortgage. 


MEBWINE    ON    REAL    ACTIONS. 


116 


FORM. 

41.  Entry     finding    the     issues     in 

favor   of   plaintiff  and  order- 
ing sale  of  real  estate. 

42.  Order    of    sale    from    the    clerk 

to   the   sheriff. 

43.  The    proof    of    publication. 


FORM. 

44. 
45. 
40. 

'47. 


Legal    notice    of    sheriff's    sale. 
Sheriff's    return   of   his   sale. 
Confirmation  of  sale  and  order 

for  deed  and  distribution. 
Sheriff's   deed  in  such  case. 


No.  23.     The  petition  in  such  case. 

Court  of  Common  Pleas,  

B.  T.  Company, 


County,  Ohio. 


Plaintiff, 


vs. 


No. 


L.  F.  R.,  M.  O.  R.,  R.  S., 
The  M.  L.  A.  of  


Ohio. 


Defendants, 


Petition. 


Plaintiff  is  a  corporation  duly  incorporated  under  the  laws  of  the 
State  of  Ohio,  not  for  profit,  has  existed  as  such  at  and  prior  to  the  times 
hereinafter  mentioned,  and  has  its  usual  place  of  business  in  the  city  of 
.  Ohio. 

On  or  about  ,   19 ,    for   a   valuable  consideration,   L.   F.  R. 

became  indebted  to  plaintiff  in  the  sum  of  $ ■ ■  upon  a  promissory 

note,  of  which  the  following  is  a  copy: 

$ .  ,   Ohio,  ,   19 . 


pany 


years  after  date  I  promise  to  pay  to  the  order  of  B.  T.  Com- 

dollars  at per  cent,  interest.     Value  received. 

L.  F.  R., 
I.  W.  G., 
A.  H.   P. 

Nothing  whatever  has  been  paid  on  said  indebtedness,  and  plaintiff  has 
ever  since  been  the  owner  and  holder  of  said  note. 

On  or  about  ,  19 .  while  so  indebted  to  plaintiff,  the  de- 
fendant  L.    F.    R.   caused   to  be   recorded   in   the   Record  of   Deeds   of    this 

county,   in   Volume  ,   at   page   ,    a    pretended    deed   of   conveyance, 

bearing   date  of  ,   19 ,  whereby  he  purported  to  convey  to  his 

mother.  M.  0.  R..  the  following  described  real  estate,  of  which  he,  the  said 
L.  F.  R.,  was  then  the  owner  in  fee  simple,  to-wit :  I  Here  insert  descrip- 
tion of  real  estate.) 

Said  pretended  conveyance  of  said  premises  by  said  L.  F.  R.  to  his 
said  mother,  M.  O.  R.,  was  without  any  adequate  consideration,  was  for 
the  purpose  of  placing  the  same  beyond  the  reach  of  his  creditors,  and  for 
the  purpose  of  hindering,  delaying  and  defrauding  this  plaintiff  in  the 
collection  of  its  said  claim;  said  transfer  was  made  for  the  pretended 
consideration  of  $ ,  when,  in  fact,  there  was  no  valuable  consid- 
eration, or  a  mere  nominal  and  totally  inadequate  consideration. 

Said  real  estate  was,  at  the  time  of  said  pretended  sale,  and  still  is,  of 
the  value  of  about  $ .     At  the  time  of  the  making  and  recording 


117  FORMS. 

of  said  pretended  deed  the  said  L.  F.  R.  was  largely  indebted  and  wholly 
insolvent,  which  was  known  both  to  himself  and  the  said  M.  0.  K..  and  the 
said  M.  0.  R.  acquiesced  in  said  pretended  conveyance  for  the  purpose  of 
aiding  the  said  L.  F.  R.  in  hindering,  delaying  and  defrauding  his  then 
existing  creditors,  including  this  plaintiff.  Plaintiff  had  no  knowledge  of 
t lie  fraudulent  character  of  said  conveyance  until  within  four  years  of 
t  lie  tiling  of  this  petition. 

On    ,    19 .    plaintiff    recovered    a    judgment    in    this    court 

against  the  defendant  L.  F.  R.  ct  al.,  on  the  above  promissory   note,   in  a 

cause   Xo.  ,   herein   pending,   wherein   this   plaintiff   was    plaintiff 

and  L.  F.  R.  et  al.  were  defendants,  for  the  sum  of  $ ,  with  inter- 
est thereon  at per  cent,  per  annum  from  ,   19 .  and  also 

costs   therein,   taxed   at   $ ,   which    said   judgment   is   in    full   force 

and  effect,  unreversed,  and  wholly  unsatisfied. 

On  ,   19 ,  an  execution  was  duly  issued  on  said  judgment 

out  of  said  court,  directed  to  the  sheriff  of  County,  and,  for  want 

of  goods  and  chattels  of  said  L.  F.  R.,  or  other  defendants  in  said  action, 
whereon  to  levy,  was  on  the  same  day  duly  levied  upon  the  above  de- 
scribed real  estate  belonging  to  said  L.  F.  R.,  which  levy  still  subsists. 

The  defendants  R.  S.  and  M.  L.  A.  of  ,  Ohio,  each  claim  some 

mortgage  lien  on  said  premises,  the  amount  now  due  them,  respectively,  if 
anything,  plaintiff  is  unable  to  state. 

Plaintiff  further  says  that,  by  reason  of  said  pretended  and  fraudu- 
lent conveyance,  so  made  by  said  L.  F.  R.,  and  so  received  by  the  said 
M.  0.  R.,  as  grantee,  and  the  said  claims  of  R.   S.  and  the  M.  L.  A.  of 

,  Ohio,  it  is  unable  to  sell  said  real  estate  upon  execution  in  satis 

faction  of  its  said  indebtedness. 

Wherefore  plaintiff  prays  that  the  said  deed  of  conveyance  from  the 
said  L.  F.  R.  to  said  M.  0.  R.  of  the  said  real  estate  may  be  declared 
void  and  may  be  vacated  and  annulled;  that  the  said  R.  S.  and  the  M.  L. 
A.  be  made  parties  defendant,  and  required  to  set  up  their  respective 
claims;  that  the  property  may  be  sold,  the  priority  of  the  liens  be  de- 
termined, and  the  proceeds  applied  to  the  payment  and  satisfaction  of  the 
liens,  including  this  plaintiff's,  in  the  order  of  their  respective  priorities. 
all  costs  and  increase  costs,  and  that  plaintiff  may  have  such  other  and 
further  relief  as  equity  and  its  cause  may  require. 


Attorneys  for  Plaintiff. 
The  above  petition  to  be  duly  verified  as  in  other  cases. 

No.  24.     The  summons  and  the  sheriff's  return  of  service  of 
same. 

The  State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  commanded  to  notify  L.  F.  R.,  M.   0.  R.,  R.  S.  and  The  M.  L. 

A.  of  .  Ohio,  that  they  have  been  sued  by  R.  T.  Co.  of  . 

Ohio,  in   the  Court  of  Common   Pleas  of  County,  and   that,   un- 
less they   answer  by  th  >  day  of ,   in   the  year   of  our   Lord 


MERW1NE    ON    REAL    ACTIONS.  118 

one   thousand   eight   hundred    and   ,   the   petition   of   said    plaintiff 

against  them  filed  in  the  clerk's  olfice  of  said  county,  such  petition  will 
be  taken  as  true,  and  judgment  rendered  accordingly. 

You  will  make  due  return  of  this  summons  on  the day  of , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  . 

Witness  my  hand  and  the  seal  of  said  court  this  day  of  , 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and  . 


Clerk   Court   Common  Pleas, County,  Ohio, 

By , 

Deputy. 
Sheriff's   Return. 

The  State  of  Ohio,  County,  ss.: 

Received   this   writ  .   in   the   year   of   our   Lord   one   thousand 

nine  hundred  and ,  at o'clock  —  m.,  and,  pursuant  to  its 

command,  on  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 
dred  and  ,   I  served  the  same   by  personally   handing  a   true  and 

duly  certified  copy  of  this  writ,  with  all  the  indorsements  thereon,  to  the 
following  of  the  within  named  defendant,  M.  0.  R.  I  also,  on  the  same 
day,  left  a  true  and  duly  certified  copy  of  this  writ,  with  all  the  indorse- 
ments thereon,  at  the  usual  place  of  residence  of  each  of  the  following  of 
the  within  named  defendants:    L.  F.  R.  and  R.  S.     I  also,  on  the  same  day, 

served   the  within   named  defendant,  The  M.   L.   A.   of  ,   Ohio,  by 

personally  handing  a  true  and  duly  certified  copy  of  this  writ,  with  all 
the  indorsements  thereon,  to  O.   S.  C,  secretary  of  said  The  M.  L.  A.  of 

,    Ohio,    the    president    and    vice-president    not    found    within    my 

bailiwick.  C.  A.  P.,  Sheriff. 

No.  25.     The  answer. 

Joint  and  Several  Answer  of  Defendants  L.  F.  R.  and  M.  0.  R. 

B.  T.  Company, 

Plaintiff, 

vs.  No.  . 

L.  F.  R.,  M.  O.  R.,  R.  S., 

The  M.  L.  A.  of  ,  Ohio, 

Defendants. 

Now  come  defendants  L.  F.  R.  and  M.  0.  R.,  and,  for  their  joint  and 
several  answer  to  the  petition  of  plaintiff  herein,  say: 

That  they  admit  that  plaintiff  is  incorporated,  and  the  execution  and 
delivery  to  plaintiff  of  the  said  note  of  $ ,  as  set  out  in  the  peti- 
tion, and  that  the  same  is  unpaid. 

They    admit    that    on    .    10 ,    plaintiff    recovered    judgment 

against' the  makers  of  said  note,  as  set  out  in  the  petition,  and  that  exe- 
cution was  issued  and  levy  made  on  the  real  estate  mentioned  in  the  peti- 
tion, and  that  said  judgment  is  unsatisfied. 

They    admit    that    on    the    said    ,     19 .    and     until     about 

,   19 ,   defendant  L.   F.   R.   was   the  owner   in  fee  simple  of  said 

,  Ohio,  described  in  the  petition,  and  that  said  L.  F.  R.  conveyed 


119  FORMS. 

by  deed  the  same  to  the  defendant  M.  O.   R.,  on  or  about  said  , 

19 ,   which  devil  of  conveyance  was  duly   recorded,   as  set   out  in   the 

petition;  but  these  defendants  deny  each  and  every  other  allegation  in 
said  petition  contained,  and  especially  deny  the  assertions  of  plaint  ill'  that 
said  deed  "was  a  pretended  deed  of  conveyance"  only,  and  that  the  same 
only  "purported  to  convey  to  his  mother,  V.  ().  It.,"  the  premises  in  said 
petition  described,  and  they  especially  deny  all  want  of  consideration  and 
fraud  in  said  transfer,  as  alleged  by  plaintiff.  On  the  other  hand,  they 
aver  that  said  conveyance  was  for  a  full  and  adequate  consideration,  and 

further,  these  defendants  deny  that  said  premises  were  worth  $ at 

the  date  of  said  conveyance,  or  that  they  have  at  any  time  since  been  worth 

said    sum   of  $ ;    and   further,   they   deny   that  they  were,   at  said 

.  19 ,  worth  any  more  than  the  encumbrances  upon  said  prem- 
ises, with  the  just  and  true  indebtedness  of  defendant  L.  F.  R.,  at  said 
date,  to  said  defendant  M.  O.  R.;  and  further,  these  defendants  deny  that 
said  L.  F.  R.  ever,  after  said ,  19 ,  owned  or  possessed  any  in- 
terest in  said  premises,  or  that  he  had  any  equity  in  the  same  at  said 
date  of  transfer  which  he  conveyed  to  said  M.  ().  R.,  the  mother  of  said 
L.  F.  R. 

Defendant  M.  ().  R.  is  the  legal  owner  and  holder  of  said  premises  by 
purchase. 

Wherefore  defendants  pray  that  the  petition  of  plaintiff  herein  may 
be  dismissed,  and  that  they  may  go  hence  without  day  and   recover  their 

costs  herein,  taxed  at  $ ,  and  that  the  title  to  said   premises  may 

be  quieted  in  defendant  M.  O.  R.,  and  for  such  other  and  further  relief  as 

is  equitable  and  just  in  the  premises.  , 

Attorney  for  Defendants. 

Answer  verified  as  in  other  actions. 

No.  26.     Answer  and  cross-petition, 

B.  T.  Company, 

Plaintiff, 
vs.  No.  '  . 

L.  F.  R.,  M.  O.  R.,  R.  S., 

The  M.  L.  A.  of  : — ,  Ohio, 

Defendants. 

1.  First  Cause  of  Action: 

The  defendant  L.  F.  R.  is  indebted  to  the  defendant  R.  H.  on  a  promis- 
sory note,  of  which  the  following  is  a  copy,  with  all  credits  and  indorse- 
ments thereon:      (Here  copy  note  and  indorsements.) 

There  is  due  plaintiff  from  defendant  on  such  note  the  sum  of  $ , 

which    he   claims,    with    interest    thereon    from    the   day    of , 

19 ;    on   $ thereof   at   the  rate  of  per  cent,    per   annum, 

payable  annually,  and  on  $ at  per  cent,  per  annum. 

2.  Second  Cause  of  Action: 

Said  defendant  L.  F.  R.  is  further  indebted  to  plaintiff  on  a  promis- 
sory note,  of  which  the  following  is  a  copy,  with  all  credits  and  indorse- 
ments thereon:      (Here  copy  note  and  indorsements.) 


MERWINE    ON    REAI,   ACTIONS.  120 

There  is  due  the  defendant  R.  S.  from  the  defendant  L.  F.  R.  on  said 

note  the  sum  of  $ ,  which  he  claims,  with  interest  on  $ at 

the    rate    of    per  cent,    per    annum,    payable    annually,    and    on 

$ at  per  cent,  per  annum. 

3.  Third  Cause  of  Action: 

The  said  defendant  L.  F.  R.  is  further  indebted  to  plaintiff  on  a  prom- 
issory note,  of  which  the  following  is  a  copy,  with  all  credits  and  indorse- 
ments :     ( Here  copy  note  and  indorsements,  i 

There  is  due  the  defendant  R.   S.  from  the  defendant  L.  F.  R.  on  said 

note  the  sum  of  $ ,  which  he  claims,  with   interest  on  $ 

the  rate  of  per  cent,  per  annum,  payable  annually,  and  on  $ 

at  per  cent,    per  annum. 

4.  Fourth  Cause  of  Action: 

The  defendant  R.  S.  says  that  the  defendant  L.  F.  R.  did,  on  the  


day  of  ,  A.  D.,  19 ,  convey  the  premises  in  the  petition  de- 
scribed  to  the  said   R.  S.  by  a  mortgage  deed,  to  secure  the  payment  of 

$ ,  witli  interest  at  the  rate  of  per  cent,  per  annum,  payable 

annually,  until  due,  and  per  cent,   after   maturity,  which   said  deed 

of  mortgage  was,  on  the day  of  — ,  A.   D.,  19 ,  at  

o'clock  —  m,   duly  left  for  record  with  the  Recorder  of  said  County, 

Ohio,  whereby  it  became,  and  still  is,  a  valid  and  subsisting  lien  upon  the 
premises  aforesaid;  and  the  said  L.  F.  R.  has  paid,  on  account  of  the  in- 
debtedness secured  by  said  mortgage,  $ of  the  principal,  and  in- 
terest to  the  day  of  ,  19 ,  and  no  more;  and  the  bal- 
ance of  $ .   with   interest,   is    still   due   and   owing   the   said   R.   S. 

from  the  said  L.   F.   R. 

Wherefore   the   said   R.    S.    asks   judgment   against   the    said   L.    F.   R. 

for  the  sum  of  $ ,  with  interest  on  $ thereof  at  the  rate 

of  per  cent,  per  annum.     That  the  property  in  the  petition  described 

may  be  sold,  and  that  his  said  claim  be  satisfied  out  of  the  proceeds  thereof, 
according  to  the  priority  of  the  liens  on  the  same,  and  for  such  other 
and  further  relief  as  may  be  just  and  proper  in  the  premises. 


Attorneys   for  Plaintiff. 
The  answer  should  be  verified. 

No.  27.    Decree  setting  aside  deed  and  ordering  sale  of  real 
estate. 

B.  T.  Company, 

Plaintiff, 

vs.  No.  . 

L.  F.  R.,  M.  O.  R.,  R.  S.. 

The  M.  L.  A.  of  ,  Ohio., 

Defendants. 

Entry. 

This  flay  this  cause  came  on  to  lie  heard  upon  the  petition  of  plaintiff 
and  the   joint   and    several   answer   of   the    defendants,   L.    F.   R.    and   M. 


121 


FORMS. 


0.  R.  and  the  evidence;  and  the  cause  was  argued  by  counsel  and  sub- 
mitted  to  the  court;  on  consideration  whereof  the  court  finds  upon  all  the 
issues  joined  in  favor  of  the  plaintiff,  that  the  defendant,  M.  <).  I!., 
obtained  the  deed  of  conveyance  set  forth  in  the  pet  it  ion  from  the  said 
L.  F.  R.  without  any  consideration  therefor  and  in  fraud  of  the  rights 
of  plaintiff  as  a  creditor  of  the  said   L.  F.   It.  as  alleged   in  said  petition; 

that  the  pltintiff  hereinbefore  in  this  court  in  cause  No.  ,  on  

19 •  had  (.uly  recovered  a  judgment  against   the  defendant.  1..  F.  R.,  in 

the  sum   of  $ ,  with   interest  at  per  cent,    per   annum    from 

•  19 '  and  costs  of  suit,  which  judgment  is  wholly  unsatisfied; 

that  the  plaintiff  hereinbefore  in  this  court  in  cause  No.  ,  on  

was  duly  levied  on  the  premises  described  in  the  petition  by  virtue  of 
which  levy  plaintiff  acquired  a  specific  lien  for  said  judgment  on  the 
premises  described  in  the  petition  herein. 

It  is  further  ordered  and  adjudged  by  the  court  that  the  deed  of 
conveyance  described  in  plaintiff's  petition  herein  from  said  L.  F.  R.  to 
M.  O.  R.  for  the  following  described  real  estate  situate   in   the   County  of 

,  in  the  State  of  Ohio,  and  in  the  city  of  ,  and  bounded 

and  described  as  follows:  (Here  insert  description  of  real  estate)  be  and 
the  same  is  hereby  vacated,  set  aside,  annulled  and  declared  of  no  force 
and  effect. 

It  is  therefore  further  ordered,  adjudged  and  decreed  that  said  prem- 
ises be  sold,  and  the  proceeds  arising  therefrom  be  applied  to  the  payment 
of  claim  of  the  several  lien  holders  herein,  including  the  lien  of  plaintiff, 
in  order  of  the  priorities  of  said  several  liens;  and  that  an  order  of  sale 
issue  to  the  sheriff  of  this  county  commanding  him  to  appraise,  advertise 
and  sell  as  upon  execution  the  premises  hereinbefore  described,  and  report, 
his  proceedings  in  the  premises  to  this  court  for  further  order. 

And  upon  application  and  for  good  cause  shown,  advertisement  in  a 
German  newspaper  is  hereby  dispensed  with:  to  all  of  which  findings, 
order  and  decree,  defendants  hereby  except,  and  notice  having  been  given 
by  the  defendants  of  their  intention  to  appeal  the  case  to  the  Circuit 
•Court,  bond  is  hereby  fixed  at  $ . 

No.  28.     The  order  of  sale  from  the  clerk  directed  to  the 
sheriff. 

The  State  of  Ohio,  County,  ss.: 

To  the  sheriff  of  said  county,  Greeting: 

Order  of  Sale. 
Whereas,  At  a  term  of  the  Court  of  Common  Pleas,  held  at  , 


in  and  for  said  county,  on  the  day  of  ,  A.  D.  one  thou- 
sand nine  hundred  and  ,  in  the  cause  of  B.  T.  Company,  plaintiff, 

and  L.   F.   R.,  et  al,  defendants,  it  was  ordered,   adjudged   and   decreed    a  3 
follows,   to-wit:      That  the   following  described   real  estate,  situate   in   the 

county   of  ,   in   the   State   of   Ohio,   and   in   the   city  of  , 

and  bounded  and   described   as  follows:      (Here  insert  description  of   real 
estate)   be  sold  to  satisfy  a  judgment  heretofore  rendered  in  this  court  on 


MERWINE    ON    REAL    ACTIONS.  122 

,   19  ,  for  the   sum  of  $ ,  with  interest   at  per 

cent,  per  annum  from  ,  19 ,  and  costs  of  suit  against  L.  F.  R. 

and  in  favor  of  said  plaintiff,  and  the  proceeds  arising  tlierefrom  bo 
applied  to  the  payment  of  the  several  lienholders  herein,  including  the  lien 
of  plaintiff  in  the  order  of  the  priorities  of  said  several  liens;  and  that 
an  order  of  sale  issue  to  the  sheriff  of  this  county  commanding  him  to 
have  appraised,  advertise  and  sell  as  upon  execution  the  premises  herein- 
before described  and  report  his  proceedings  in  the  premises  to  this  court 
for  further  orders. 

We  therefore  Command  You,  That  you  proceed  to  carry  such  order, 
judgment  and  decree  into  execution  agreeably  to  the  tenor  thereof,  and 
that  you  expose  to  sale  the  above  described  real  estate,  under  the  statute 
regulating  sales  on  execution,  and  that  you  apply  the  proceeds  of  such 
sale  in  satisfaction  of  said  judgment  and  decree,  with  costs  and  interest, 
as  specified  therein;  and  that  you  make  report  of  your  proceedings  herein, 
to  our  Court  of  Common  Pleas  within  sixty  days  from  the  date  hereof,  and 
bring  this  order  with  you.  And  [  certify  under  seal  of  court  that  the 
description  of  property  herein  is  correctly  copied  from  the  records  of  this 
case  on  file  in  this  office. 

Witness  my  signature  as  clerk  of  our  said  Court  of  Common  Pleas,  and 

the  seal  of  said  court,  at  ,  this  day  of  ,  A.  D.  one 

thousand  nine  hundred  and  .  , 

German  publication  dispensed  with.  tlerk. 

No.  29.     Proof  of  publication  and  notice  of  sale. 

Proof  of  Publication. 

State  of  Ohio,  County,  ss.: 

D.  E.  D.,  cashier  for  the  ,  a  newspaper  published  at  , 


County,    Ohio,    personally    appeared    and    made    oath    that    the 

attached    printed    advertisement     was    published     for    consecutive 

weeks  in  said  newspaper  from  and  after  ,   19 ,  and  that  said 

paper   is  of  general  circulation   in   said  county  and   State. 

D.  E.  D., 


Subscribed  and  sworn  to  this  day  of  ,  19- 


Notary  Public  in  and  for County,  Ohio. 

No.    30.     Notice  of  sheriff's  sale  of  real  estate. 

Court  of  Common   Pleas, County,  Ohio. 

B.  T.  Company. 

Plaintiff, 

vs.  No.  . 

L.  F.  R.,  ef  al. 

Defendants. 

In  pursuance  of  an  order  of  sale  from  said  court  to  me  directed,  I  will 
offer  for   sale,   at   public  auction,   at   the  door  of  the  eourt   house  in   the 


123  FORMS. 

city  of  ,  County,  Ohio,  on  .  the  day  of 

,  A.  D.  10 ,  at o'clock  —  m.,  the  following  described  real 

estate,  situate  in  the  county  of  and  State  of  Ohio,  and  in  the  city 

of  .  and  bounded  and  described  as  follows:      (Here  supply  descrip- 
tion ) . 

Said  property  is  located  and  known  as   (Here  insert  number  and  name 
of  street,  if  any  ) . 

Appraised  at  $ . 

Terms  of  sale,  .  , 

Sheriff  of  County,  Ohio. 


Plaintiff's  A  ttorney. 
German  publication  dispensed  with. 

No.  31.     The  sheriff's  return  of  the  sale. 

Sheriff's   Return. 

The  State  of  Ohio,  County,  ss. : 

In  obedience   to   the  command   of  the  order  of  sale  hereto  annexed,   I 

did,  on  the  day  of  ,  A.   1).  one   thousand  nine   hundred  and 

,    summon    W.    A.    O.,    P.    J.    M.    and   C.    A.    D.,    three    disinterested 

freeholders,  residents  of  said  county,  who  were  by  me  duly  sworn  to 
impartially    appraise    the    lands    and    tenements    therein    described,    upon 

actual   view,   and   afterward,   on   the  day   of  ,    A.   D.   one 

thousai  d  nine  hundred  and  ,  said  appraisers  returned  to  me,  under 

their  hands  and  seals,  that  they  did,  upon  actual  view  of  the  premises, 
estimate   and  impartially   appraise   the   real   value   in   money  of   the  same 

at    dollars.       A    certified    copy    of    said    appraisal     I    forthwith 

deposited  in  the  office  of  the  clerk  of  the  Court  of  Common  Pleas  of  said 

county.     And   on  the day  of  ,   A.   D.  one   thousand    nine 

hundred  and  ,  I  caused  to  be  advertised  in  the  (a  news- 
paper   printed    and    published    and    of    general    circulation     in    

County,  Ohio)  said  lands  and  tenements  to  be  sold  at  public  sale,  at  tin- 
door  of   the  court  house  of   said   county.  On  the  day  of  , 

A.  D.  one  thousand  nine  hundred  and  ,  at  o'clock m.  of 

said  day.  And  having  advertised  the  said  lands  and  tenements  for  more 
than  thirty  days  previous  to  the  day  of  sale,  to-wit:  live  consecutive 
weeks  on  the   same   day  of   the   week    in   each    week,   ami    in    pursuance  of 

said  notice,   I   did,  on   said  day  of  ,   A.   I),  one   thousand 

nine  hundred  and  ,  at  the  time  and  place  above  mentioned,  proceed 

t»>  offer  said  lands  and  tenements  at  public  sale  at  the  door  of  said 
court   house,   and   then   and   there   came   R.    S.,    who   bid    for   the  same   the 

sum  of  dollars,  and  said  sum  being  more  than   two-thirds  of  tin' 

appraised  value  thereof,  and  said  R.  S.  being  the  highest  and  best  bidder 
therefor,  1  then  and  there  publicly  sold  and  struck  off  said  lands  and 
tenements  to  him  for  said  sum  of    ($ )    dollars. 

Sheriff. 


MERWINE    ON    REAL    ACTIONS.  124 

No.  32.     Motion  to  .confirm  sale  and  apportion  costs. 

B.  T.  Co., 

Plaintiff, 
vs. 
L.  F.  R.,  M.  O.  R.,  R.  S., 

The  M.  L.  A.  of ,  Ohio, 

Defendants. 

Motion. 

The  M.  S.  and  L.  A.,  defendant  herein,  now  comes  and  moves  the  court 

to  confirm  the  sale  made  by  the  sheriff  herein  on  ,    19  ,  and 

to  tax  the  cost  herein,  and  to  apportion  the  costs  between  the  parties  and 
apportion  the  costs  to  be  paid  out  of  the  proceeds  of  the  said  sale. 


Attorney  for  Defendant. 

No.  33.     Order  of  court  confirming  sale  and  ordering  deed. 

B.  T.  Company, 

Plaintif, 
vs. 
L.  F.  R.,  M.  O.  R.,  R.  P., 

The  M.  L.  A.  of  ,  Ohio, 

Defendants. 

This  day  came  the  M.  S.  and  L.  A.,  defendant  herein,  and  upon  its 
application  leave  is  granted  by  the  court  to  insert  in  the  second  cause 
of  action  in  its  answer  and  cross-petition  filed  herein,  a  credit  upon  its 
claim  set  forth  therein  for  taxes  paid  by  it  of  $ ,  omitted  by  over- 
sight in  drafting  its  said  cross-petition.  And  all  the  parties  hereto  being 
i  l  default  for  answer  or  demurrer  to  said  answer  and  cross-petition,  the 
allegations  thereof  are  hereby  confessed  by  them  to  be  true,  and  the 
court  finds  that  there  is  due  said  defendant,  The  M.  S.  and  L.  A.  from 
said  defendant,  L.  F.  R.,  on  the  claims  set  up  in  said  answer  and  cross- 
petition,  the  sum  of  $ ,  and  that  the  same  is,  next  after  the  un- 
paid taxes  thereon,  the  first  and  best  lien  on  the  real  estate  described 
therein. 

And  thereupon  came  the  said  defendant.  The  M.  S.  and  L.  A.,  and 
presented  to  the  court  the  return  of  the  sheriff  upon  the  order  of  sale 
herein,  showing  the  sale  made  by  him  of  the  real   estate   involved   in  this 

action   on   the  day  of  ,    1!) ,   and   asked  confirmation 

of  the  same,  and  the  court  upon  careful  examination  of  the  said  pro- 
ceedings of  the  sheriff  under  said  order  of  sale,  and  the  sale  made  by  him 
thereunder,  find  that  the  same  are  in  all  respects  according  to  the  law 
and  the  orders  of  this  court,  and  do  approve  and  confirm  the  same,  and 
it  is  ordered  that  the  sheriff  convey  to  the  purchaser  at  said  sale,  R.  S., 
the  premises  so  sold,  to  wit  :      (Here  insert  description  of  property.) 

And    the   court   coming   now   to   distribute    the   money   i-i    the   hands   of 

the  sheriff  arising  from  said  sale,  amounting  to  $ ,  it  is  ordered  that 

the  sheriff  out  of  said  money  in  his  hands  pay: 


125  FORMS. 

First,  the  taxes  and  assessments  now  on  the  duplicate  for  collection 
by  the  treasurer,  charged  against  said  premises  and  remaining  unpaid, 
amounting  to  $ . 

Second,  the  cost  of  this  action  by  the  court  determined  and  appor- 
tioned as  payable  out  of  the  proceeds  of  said  sale,  being  all  the  costs 
in  this  action,  excepting  the  charges  for  copies  of  pleadings  and  the  costs 
of  issuing  and  serving  subpoenas  for  witnesses  and  the  fees  of  witnesses, 
on  behalf  of  the  defendants,  L.  F.  R.  and  M.  O.  R.,  the  costs  apportioned 
by  the  court  to  be  paid  out  of  the  proceeds  of  said  sale,  amounting 
to,  $ . 

Third,  to  the  defendant,  The  M.  S.  and  L.  A.  the  balance  of  said  money. 

amounting  to  $ as  a  credit  upon  the  amount  found  by  the  court 

due  to  it  on  its  claim  set  forth  in  its  answer  and  cross-petition. 

And  it  is  further  ordered  by  the  court  that  the  clerk  cause  satisfaction 
to   be  entered    upon  the  margin  of  the  records  of  the  mortgages   on   said 

premises  involved  in  said  action,  to-wit:   in  Vol.  ,  p.  ,  of  the 

records  of  mortgages  of  said  county. 

No.  34.     Sheriff's  deed  in  such  case. 

To  all  Persons  to  Whom  these  Presents  shall  come.  Greeting: 

Whereas,    On    the   day   of   ,    19 ,   B.   T.    Company, 

plaintiff,  filed  its  certain  petition,  and  then   and  there  commenced  a  civil 

action  in  the  Court  of  Common   Pleas  of  County,   Ohio,  against 

L.  F.  R.  et  al,  and  numbered  on  the  docket  of  said  court  as  case  Xo.  — — , 
praying  therein,  among  other  things,  for  the  sale  of  certain  real  estate  in 
said  petition  and  hereinafter  described;  and, 

Whereas,  Such  proceedings  were  had  in  said  action,  that  by  the  con- 
sideration and  judgment  of  said  court  on  the  day  of  , 

19 ,    in   the   ■ —   term,    19 ,   the   said    B.    T.    Company    recovered 

a  judgment  against  the  said  L.  F.  R.  in  the  sum  of  $ and  costs 

of  suit;   and, 

Whereas,  It  was  then  and  there  further  ordered,  adjudged  and  decreed 
by  said  court  in  said  action  that  unless  the  said  defendant,  L.  F.  R.,  should 
pay  the  costs  of  said  suit  and  to  the  said  B.  T.  Company,  the  amount  so 
found  due,  within  days  from  the  entry  of  said  decree,  said  prem- 
ises   should    be   sold,   and   an   order   of   sale   should    issue   therefor   to   the 

sheriff   of   said   county,  ,   commanding   him    that    lie    should   cause 

the  lands  and  tenements  in  said  petition  and  order  mentioned  and  here- 
inafter described,  to  be  appraised,  advertised  and  sold  according  to  law, 
and    return   his  proceedings  to   said  court:    and. 

Whereas,  afterward,  on  the  day  of -,  19 .  in  pur- 
suance of  said  order  and  judgment  of  said  court  and  the  thereon, 

an  order  of  sale  issued  from  said  court  in  said  cause  directed  to  , 

sheriff  of  said  county,  commanding  him  to  execute  the  said  order,  and  in 
all  things  to  be  governed  by  the  provisions  of  the  statute  in  such  case 
made  and  provided,  and  the  said  order  with  his  proceedings  thereon  he 
should  make  due  return ;  and, 

Whereas,  I  ,  sheriff  as  aforesaid,  having  caused   said   prem- 


MERWINE    ON    REAL   ACTIONS.  126 

ises  to  be  appraised  and  a  copy  of  the  appraisement  to  be  duly  filed  in 
the  office  of  the  clerk  of  said  court,  and  having  advertised  the  time  and 

place  of  selling  the  same  in ,  a  newspaper,  printed  and 

of  general  circulation  in  said  county,  for  the  period  of  thirty  days  prior 
to   the   day   of  sale,   and  otherwise  complied   with   said  orders   and  provi- 

sions  of  the  statute  in  such  cases  made  and  provided,  did  on  the  

day  of  ,   19 ,  at  the  door  of  the  court  house,  in  said  county, 

at  o'clock  M.  of  said  day,  expose  to  sale  at  public  auction  the 

premises    hereinafter    mentioned,    and    thereupon    R.    S.,    having    bid    for 

said  premises  the  sum  of  $ ,  and  said   sum  being  the  highest  and 

best  bid  offered  for  the  same,  and  being  more  than  two-thirds  of  the  ap- 
praised value  thereof,  the  said  premises  were  then  and  there  struck  off 
to  him,  the  said  R.  S.,  the  purchaser,  for  the  sum  above  mentioned;  and, 

Whereas,  The  said  court  at  its  term,  19 ,  having  examined 

the  proceedings  aforesaid  in  the  premises,  under  said  order  of  sale,  and 
being  satisfied  that  the  sale  aforesaid  had  been  made  in  all  respects  in 
pursuance  to  said  judgment  and  order  of  sale  and  in  accordance  with 
the  provisions  and  requisites  of  the  statute  relating  to  such  sale,  did  order 

that    such    sale    should    be    confirmed,    and    that    said    sheriff   of   

County,  Ohio,  should  convey  said  real  estate  by  deed  in  fee  simple  to  t-.c 
purchaser,  R.  S. 


Now.  Know  Ye.  That  T.  the  said  ,  sheriff  of ■  County, 

Ohio,  as  aforesaid,  by  virtue  of  said  judgment,  order  of  sale,  sale  and 
confirmation,   and   of   the   statute   for   such  cases  made  and   provided,   and 

for  and  in  consideration  of  the  premises  herein,  and  the  sum  of  $ , 

which  I  acknowledge  to  have  received  from  the  purchaser  above  named, 
do    hereby    grant,    sell    and    convey    unto    him,    the    said    R.    S.,    his   heirs, 

assigns   forever,    the   following    real    estate,    situated    in   County, 

State  of   Ohio,   and   in  .   and   bounded   and   described   as   follows: 

(Here  insert  description  of  real  estate),  together  with  all  the  privileges 
and  appurtenances  thereunder  belonging  and  all  the  right,  title  and  interest 
of  the  said  L.  F.  R.,  and  of  all  the  other  parties  to  said  suit  on,  in  and 
to  the  same. 

To  Have  axu  to  Hoi.o  the  premises  aforesaid,   unto  the  said  R.  S.,  his 
heirs  and  assigns  forever,  as  fully  and  completely  as  1,  the  said  C.  A.  P.,, 

sheriff  of  County.  Ohio,  by  virtue  of  said  judgment,  order  of  sale. 

sale  and  confirmation,  and  of  tin-  statute  made  and  provided  for  such 
cases,   might   and   should   sell   and    convey   the   same. 

In  Witness  Whebeof  1  have  hereunto  set  my  hand  and  seal  this 

day  of  ,  19 . , 

Sheriff  of  County,  Ohio. 

Signed,   scaled   and    acknowledged    in    the    presence  of: 


State  of  Ohio,  County,  ss. : 

Personally    appeared    before   me    a    notary   public   within    and    for    said 

county   the  above  named  ,   sheriff  of  County,   Ohio,  the 

grantor   in    the   above   deed   of   conveyance,    who   acknowledged    the   signing 


127  FORMS. 

and  scaling  of  the  same,  to  be  his  voluntary  act  and  deed,  for  the  uses 
and  purposes  therein  mentioned. 

In    Witness    Whebeof    1    have    hereunto    set    my    hand    and   seal    this 

day  of  ,  lit .  

Notary  Public  within  and  for  County,  Ohio. 

No.  35.     Petition  for  sale  of  real  estate  upon  levy  made  under 
a  foreign  execution. 

Court  of  Common  Pleas,  County,  Ohio. 

B.  T.  Co., 

Plaintiff, 

vs.  No.  . 

I.  W.  G.,  E.  M.  G.  and  J.  G.  H., 
Defendants. 

Plaintiff  is  a  corporation  duly  incorporated  under  the  laws  of  the  State 
of  Ohio,  not  for  profit,  has  existed  as  such  at  and  prior  to  the  times  here- 
inafter mentioned,  and  has  its  usual  place  of  business  in  the  city  of 
,  Ohio. 

On  the  day  of  — — .   19 .  by  the  consideration  of  the 

Court  of  Common  Pleas  of  County,  Ohio,   in  i  ase  No.  , 

plaintiff  recovered  a  judgment  against  the  said  defendant.  1.  W.  G.,  for  the 

sum    of   $ .    with    interest    on    said    sum    at    per    cent,    per 

annum   from   the  day    of   ,    IS ,    and    also    his   costs 

therein  taxed,  of  which  costs  there  is  a  balance  of  $ .  Said  judg- 
ment is  wholly  unpaid,  unappealed   and  unreversed,  except  on  the  

day   of  ,    19 ,   there   was   paid   on   said   judgment   the   sum    of 


On  the  day  of  .  19 .  plaintiff  caused  an  execu- 
tion to  be  issued  on  said  judgment  against  the  defendant  herein.   I.  W.  G., 

and  against  other  defendants  in  said  case,  directed  to  the  sheriff  of 

County,  Ohio,  who,  on  the  same  day  returned  said  writ  as  follows:  "No 
goods,  chattels,  lands  or  tenements  found  whereon  to  levy  this  writ,  and 
for  want  of  the  same  this  writ  is  returned." 

On  the  day  of  ,  19 .  plaintiff  caused  an  alias  exe- 
cution to  be  issued  on  said  judgment  against  the  defendant,  I.  W.  G.  in 
said  action  and  against  the  other  defendants  therein,  directed  to  the  sheriff 

of  — County.    Ohio,   who,   under    said   writ,   for   want    <>f   goods    and 

chattels  whereon  to  levy,  levied  on  certain  real  estate  of  a  defendant 
other  than  the  defendant,  I.  W.  G..  in  said  case.  Said  real  e-tate.  by 
virtue  of  said  execution  and  levy  was  sold  and  by  reason  of  other  prior 
liens  on  said  real  estate,  no  part  of  the  judgment  and  costs  first  herein 
alleged,  were  paid  out  of  the  proceeds  of  said  sale. 

On  the  day  of  .  19 .  plaintiff  caused  another  alias 

execution    to   he    issued    on   said    judgment   against    the   said    I.    E.   <;.   and 

the    other    defendants    in    said    case,    directed    to    the    Sheriff    of   — 

County.    Ohio.    who.    op   the day   of   .    19 .    returned 

said  writ  as  follows:  "No  <rood<,  chattels,  lands  or  tenements  found 
whereon  to  levy  this  writ,  and  for  want  of  the  same  this  writ  is  returned." 


MERW1NE    ON    REAL   ACTIONS.  128 

On    the    day    of    ,    19 ,    plaintiff    caused    another 

alias  execution   to  be  issued  against   the  defendant,  I.  W.   G.,   directed  to 

the  sheriff  of  County,  Ohio,  who,  on  the  day  of  , 

19 .    levied   said    writ    of    execution    upon   the    following   described   real 

estate  of  the  said  defendant  herein,  1.  W.  G.,  situated  in  Township  , 

County,    Ohio,   and   being  as   follows:       (Here   insert   description 

of  real  estate.) 

At  the  time  said  levy  was  so  made  as  aforesaid,  said  sheriff  of  

County.  Ohio,  was  unable  to  effect  a  sale  of  said  premises  under  said  writ, 
because  of  prior  liens  thereon,  and  returned  said  writ  for  further  pro- 
ceedings therein. 

By  virtue  of  said  judgment  and  the  execution  and  levy  last  aforesaid 
and  the  proceedings  therein,  plaintiff  has  a  valid  lien  on  said  real  estate 

for  said  sum  of  $ .  with  interest  thereon  from  the  day 

of ,  18  ,  at  per  cent,  per  annum,  except  said  payment 

of  $ as   aforesaid   and   a   lien  for  $ ,   costs   and  increased 

costs. 

The  defendant,  E.  M.  G.,  is  years  of  age,  and  by  virtue  of  a  cer- 
tain  lease,   recorded   in   Lease   Record,   ,   page  ,    Recorder's   Office, 

County,  Ohio,  claims  to  own  a  life  estate  in  said  real  estate. 

The  defendant,  J.  G.  II..  claims  a  mortgage  interest  in  said  real  estate. 

Wherefore  plaintiff  prays  that  said  defendants,  E.  M.  G.  and  J.  G.  H., 
be  required  to  answer  herein  and  set  forth  their  several  claims  and  liens 
on  said  real  estate,  or  be  forever  barred;  that  said  real  estate  be  sold  as 
upon  execution  to  satisfy  plaintiff's  liens  thereon,  subject  to  said  life 
estate;  that -the  proceeds  arising  from  said  sale  be  applied  to  the  payment 
of  the  various  liens  on  said  real  estate  in  the  order  of  their  priority,  and 
for    such   other   and   further   relief   as   equity    and    the   nature   of   the  case 

may  require.  , 

Attorneys  for  Plaintiff. 

Verified  as  in  other  cases. 

No.  36.     Summons  in  such  case  and  the  sheriff's  return. 

The  State  of  Ohio,  County,  ss. : 

To  the  Sheriff  of  the  County  of  ,  Greeting: 

We  command  you  to  notify  E.  M.  G.  and  J.  G  II.  that  they,  with 
another,  have  been  sued  by  B.  T.  Company,  in  the  Court  of  Common   Pleas 

of  County,  and   that  unless  they   answer  by   the  day  of 

.    A.    I).    19 .    the   petition    of    t lie   said   plaintiff    against    them 

filed  in  the  clerk's  office  of  said  court,  such  petition  will  be  taken  as  true 
and  judgment  rendered  accordingly. 

V»n    will    make    due    return    of    this    summon    on    the1    day   of 

,  A.   1).   19 . 

Witness  my  hand  and  seal  of  said  court,  this  day  of  , 

A.  D.  19 .  . .  , 


T.  J.  S-, 

Clerk  of  Court  of  Common  Pleas,  - County,  Ohio. 

By  A.  E.  D.,  Deputy. 


129  FORMS. 

Sheriff's  Return. 

Received   this   writ  ,   19 ,  at  o'clock  M.,   and 

pursuant  to  its  command  on  the day  of  ,  19 ,  I  noti- 
fied the  within  named  defendants,  E.  M.  G.  and  J.  G.  H.  by  leaving  at  the 
usual  place  of  residence  of  each  of  them  a  true  certified  copy  of  this  writ 
with  all  endorsements  as  hereon. 

W.  S.  R.,  Sheriff. 

By  A.  C.  R.,  Deputy. 

No.  37.     Summons  to  another  county  and  the  sheriff's  return 
thereon. 

The  State  of  Ohio,  County,  ss. : 

To  the  Sheriff  of  the  County  of  ,  Greeting: 

We  command  you  to  notify  I.  W.  G.  that  he  with  others  has  been  sued 

by  B.  T.  Co.  in  the  Court  of  Common  Pleas  of  County,  and  that 

unless  he  answer  by  the  day  of  ,  A.  D.  19 ,  the  peti- 
tion of  the  said  plaintiff  against  them  filed  in  the  clerk's  office  of  said 
court,  such  petition  will  be  taken  as  true  and  judgment  rendered  ac- 
cordingly. 

You   will    make   due   return   of   this   summons   on   the  day   of 

,  A.  D.  19 . 


Witness  my  hand  and  seal  of  said  court  this  day  of  , 

A.  D.  19 .  T.  J.  L., 

Clerk  of  Court  of  Common  Pleas. 
By  A.  E.  D.,  Deputy. 

Sheriff's  Return. 

Received  this  writ  ,   19 ,   at  o'clock  M.,   and 

pursuant  to  its  command  on  the  day  of ,  19  ,  I  served 

the  same  by  personally  handing  a  true  and  duly  certified  copy  of  this  writ 
with  all  the  endorsements  thereon  to  the  within  named  defendant,  I.  W.  G. 

G.  J.  K.,  Slieriff. 
By  J.  A.  K.,  Deputy. 

No.  38.    Answer  and  cross-petition  setting  up  a  life  estate  on 
.  said  real  estate. 


No. 


B.  T.  Co., 

Plaintiff, 
vs. 
I.  W.  O.,  E.  M.  G.  and  J.  G.  H., 

Defendants. 

Now  comes  the  defendant,  E.  M.  G.  and  for  her  cross-petition  herein 
says  that  she  admits  that  she  has  a  life  lease  upon  the  premises  described 
in  the  petition,  and  that  the  same  is  recorded  as  therein  alleged.  Defend- 
ant avers  that  the  said  lease  was  given  on  the  day  of  -, 

19 ,  and   was  received  for   record  at  the  office  of   the  recorder  of  said 


MERWINE    ON    REAL    ACTIONS.  130 

county  at  o'clock  m.  the  same  day;   that  said  lease  is  in  full 

force  and  effect,  and  that  her  rights  and  estate  thereunder  are  prior  to 
the  lien  claimed  by  the  plaintiff;  that  this  defendant  has  complied  with 
all  and  singular  the  terms  and  conditions  of  said  lease,  and  is  now  in  the 
occupation  and  enjoyment  thereof;  that  said  lease  was  granted  for  the 
full  term  of  her  natural  life,  and  reference  is  hereby  made  to  the  records 
thereof  for  all  of  the  provisions  contained  therein. 

Wherefore  this  defendant  prays  that  her  said  lease  may  be  decreed 
to  be  in  full  force  and  effect,  and  that  her  life  estate  therein  be  decreed 
prior  to  any  lien  claimed  by  the  plaintiff,  and  that  in  any  order  or  decree 
rendered  herein  her  rights  may  be  fully  protected,  and  for  all  such  other 
relief  as  she  may  be  entitled  to  in  the  premises.  H.  &  EL 

Attorneys  for  Defendant. 

Verified  as  in  other  actions. 

No.  39.    Answer  of  judgment  debtor,  general  denial. 

B.  T.  Co., 

Plaintiff, 

vs.  .  No.  . 

I.  W.  G.,  E.  M.  G.  and  J.  G.  H., 
Defendants. 

Now  comes  the  defendant,  I.  W.  G.,  and  for  his  answer  to  the  petition 
herein  says  that  he  denies  each  and  every  allegation  in  said  petition  made 
and  contained. 

Wherefore  defendant  prays  that  he  may  be  dismissed  and  for  his  costs. 

H.  &  H., 

Duly  verified.  Attorneys  for  Defendant. 

No.  40.    Answer  of  a  mortgage  lienholder  setting  up  mortgage 

B.  T.  Co., 

1 'lain  tiff, 

vs.  No.  . 

I.  W.  C.,  E.  M.  G.  and  J.  G.  H., 
Defendants. 

Now  comes   the   defendant.   J.   G.   H.,   and   for   his   cross-pet  it  ion    herein 

says  that  <>n  the  day  of  ,  19 .  the  defendant,  1.  VV.  G., 

made    and    gave    to    this    defendant    his    promissory    note    for    the    sum    of 

J? ,   due    live   year-    after    date,   with    interest    at    the    rate   <>f   

per  cent,  per  annum,  payable  semi  annually;  that  in  order  to  secure  the 
payment  of  said  note,  the  said  defendant  made  and  gave  his  mortgage 
deed  upon  the  real  estate  described  in  the  petition:  that  said  mortgage 
was  conditioned  in  substance  that  if  the  said  defendant  should  well  and 
truly  pay  said  note  according  to  its  tenor,  the  said  mortgage  should  be- 
come void;  otherwise  the  same  should  remain  in  full  force  and  effect. 
Defendant  avers  that   the  said  mortgage  was  duly  filed   for  rec  ird   in  the 

office  of  the   recorder   of   County;   Ohio,   on   the day  of 

.    1!)   ,   at   o'cl  ick   M.,   and    is   the   first   and    best 


131  FORMS. 

lien  upon  said  real  estate;  that  there  has  been  nothing  paid  upon  said 
mortgage  and  note,  and  that  the  terms  thereof  have  been  complied  with, 
and  there  is  nothing  now  due  thereon. 

Wherefore,  this  defendant  prays  that  his  mortgage  may  be  declared 
the  first  lien  upon  said  premises,  that  all  of  the  rights  and  estate  vested 
in  this  defendant  thereby  may  be  recognized  and  determined,  and  tliat  in 
any  order,  judgment  or  decree  the  rights  and  interest  of  this  defendant 
may  be  protected,  and  if  said  property  should  be  sold,  that  the  same  shall 
be  sold  subject  to  this  defendant's  mortgage,  and  for  all  such  other  relief 
as  he  is  entitled  to  in  the  premises. 


Duly  verified.  Attorneys  for  Defendant. 

No.  41.    Entry  finding  the  issues  in  favor  of  plaintiff  and 
ordering  sale  of  real  estate. 

B.  T.  Co., 

Plaintiff, 

vs.  No.  . 

I.  W.  G.,  E.  M.  G.  and  J.  G.  H., 

Defendants. 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of  plaintiff, 
the  answer  thereto  of  the  defendant.  I.  W.  G.,  the  answer  and  cross-peti- 
tion of  the  defendant,  J.  G.  H.,  and  the  evidence;  and,  on  consideration 
thereof    the   court    finds   the    issues   joined    in    favor    of    the    plaintiff,    and 

that  on ,  19 ,  by  the  consideration  of  the  Court  of  Common 

Pleas  of  County,  Ohio,  plaintifi'  did  recover  a  judgment  against 

the  defendant,   I.    VV.  G.,  in   the  sum   of  $ ,   with    interest  on  said 

sum  at  the  rate  of  per  cent,  per  annum  from  ,  19 

and  costs  of  suit,  as  set  forth  in  the  petition  herein,  which  judgment  is  in 
full  force  and  effect,  is  wholly  unpaid  and  unsatisfied,  except   the  payment 

of  •$ on  ,   19 ;   and  that  there  is  now.  at  the  date  of 

this  finding  and  decree,  due  plaintifi'  from  the  defendant,  1.  E.  G.,  on  said 
judgment  and  costs,  including  interest,  and  after  deducting  said   payment 

of  $ as  of  ,    19 ,  the  total   sum   of  $ —  — .   which 

is  entitled  to  bear  interest  at  the  rate  of  per  cent,  per  annum  un- 
til paid;  that  executions  were  duly  issued  on  said  judgment,  as  alleged 
in  the   petition,  and  for  want  of  goods  and  chattels  whereon   to   levy,   the 

execution  of  ,   19 ,  directed  to  the  sheriff  of  this  county,  was, 

by  said  sheriff  on  .  ]9 .  duly  levied  upon  the  premises  de- 
scribed in  the  petition,  and  forthwith  returned  no1  sold  by  him,  because  of 
prior  liens;  that  by  virtue  of  said  judgment  and  the  execution  and  levy 
last    mentioned,    and    the    proceedings    therein,    plaintiff    has    a    valid    lien 

dating    from    said    .     19 .    on    said    real    estate    in    the    petition 

described   for   the   said   sum   of  $ .  bearing   interest    from   — , 

19 .  and  plain! ill'  is  entitled  to  have  said  premises  sold  for  the  sat- 
isfaction  thereof. 

The    court    further    finds    that    the    defendant.    E.    M.    G.    is    

years   of   age,   is   seized   of   a    life   estate   in   said    premises   by    virtue  of   a 


MERWINE    ON    REAL   ACTIONS.  132 


lease    executed    to    her    ,    19 ,    filed    for    record    at 


o'clock   p.   St.   of    the   same   day,   and    recorded   in   Lease   Records   of   said 

County,    Volume   ,   page   ,   and    that   her   said   estate 

therein  is   superior  and  paramount  to  the  lien  of  plaintiff  herein. 

The  court  further  finds  that  the  defendant,  J.  G.  H.,  on ,  19 — , 

duly   received   from  the   defendant,   I.   \V.   G.,   a   mortgage  on   said   prem- 
ises   in   the   petition   described,    to   secure   the    latter's    promissory   note   of 

even  date,  for  $ ,  bearing  interest  at  per  cent,  per  annum, 

payable   semi-annually,  which  mortgage  was   duly  filed   for   record  in   the 

office  of  the  recorder  of  County,  Ohio,  at  o'clock  m. 

of  said  ,  19 ,  all  as  alleged  in  the  answer  and  cross-petition 

of  said  defendant,  J.  G.  H.;  that  said  J.  G.  H.  by  virtue  of  said  mortgage 

acquired  a  lien  on  said  premises,  dating  from  ,  19 ,  at  

o'clock  M.  for  the  sum  of  $ ,  bearing  interest  at  the  rate  of 

■ per  cent,  per  annum,  payable  semi-annually,  and  that  the  same 

is  the  first  and  best  lien  on  said  premises;   that  said  sum  of  $ , 


with  interest  as  last  aforesaid  is  now  due  to  said  J.  G.  H.,  who  is  entitled 
to  have  said  premises  sold  for  the  satisfaction  thereof. 

It  is  therefore  ordered,  adjudged  and  decreed  that  unless  the  defend- 
ant, I.  W.  G.,  shall  within  three  days  from  the  entry  of  this  decree,  pay 
or  cause  to  be  paid  to  the  clerk  of  this  court  the  costs  of  this  case,  and 
to  the  plaintiff  herein  the  sum  found  due  it  as  aforesaid,  with  interest  at 

,  per  cent,  per  annum,  the  said  premises  be  sold,  and  that  an  order 

issue  to  the  sheriff  of County  directing  him  to  have  said  premises  ap- 
praised, subject  to  the  said  life  estate  of  E.  M.  G.,  aged  years, 

advertise  and  sell  the  same  as  upon  execution,  free  and  clear  of  the  said 
liens  of  plaintiff  and  the  defendant,  J.  G.  H.,  but  subject  to  said  life  estate 
of  E.  M.  G.  and  report  his  proceedings  to  this  coUrt  for  further  order. 

On  motion  of  plaintiff,  and  for  good  cause  shown  advertisement  of  sale 
in  a  German  newspaper  is  hereby  dispensed  with.  It  is  further  ordered 
that  both  said  parcels  be  sold  as  one  parcel  at  not  less  than  two-thirds 
the  aggregate  appraisement  of  both  parcels. 

No.  42.     Order  of  sale  from  the  clerk  to  the  sheriff. 

The  State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of County,  Greeting:  .    , 

In  pursuance  of  an  order  and  decree  of  our  Court  of  Common  Pleas, 
within  and  for  the  county  of and  State  of  Ohio,  made  at 


term   thereof,   A.   D.    19 ,   in   a   certain   action   wherein   B.  T.   Co.   was 

plaintiff  and  I.  W.  C.  et  al,  defendants,  we  command  you  to  proceed  with- 
out delay,  and  cause  to  be  appraised,  advertised  and  to  sell  according  to 

law    the    following    real   estate,    situate   in    the    County    of    and 

.State  of  Ohio,  to-wit:     (Here  insert  description  of  real  estate.) 

And  out  of  the  proceeds  of  such  sale  you  pay: 

First — The   taxes   and   assessments   then  on   said   premises. 

Second — The  costs  and  increase  costs  in  the  aforesaid  cause. 

Third   . 

And   that  your   proceedings   in   the   premises  you  make   known  to  our 


133  FORMS. 

said  Court   of  Common  Pleas  within  and  for  the  County  of ,  within 

sixty  days  from  the  date  thereof,  and  bring  this  order  with  you. 

Witness  my  name  as  clerk  of  our  said  Court  of  Common  Pleas  and  the 

seal  thereof  at  ,  this  day  of ,  A.  D.  19 . 

T.  J.  L. 
Clerk  of  the  Court  of  Common  Pleas,  County,  0. 


No.  43.     The  proof  of  publication. 


-,  Ohio,  ,  19- 


The  State  of  Ohio, County,  ss. : 

S.  M.  B.,  one  of  the  publishers  of  The  ,  a  newspaper  printed 

and  of  general  circulation   in  the  county  of  and  State  of  Ohio, 

being  duly  sworn  according  to  law,  says  that  a  notice,  a  true  copy  of  which 

is  hereto  attached^  was  published  in  said  paper  for  consecutive 

weeks,  beginning  on  the  day  of  ,   19 . 

S.  M.  B. 

Sworn  to  and  subscribed  before  me  this day  of ,  19 

G.  A.  B. 
Notary  Public,  County,  0. 

No.  44.    Legal  notice  of  sheriff's  sale. 

B.  T.  Co., 

Plaintiff, 

vs.  No.   . 

I.  W.  G.,  E.  M.  G.  and  J.  G.  H., 

Defendants. 

By  virtue  of  an  order  of  sale,  issued  in  the  above  entitled  cause,  by 

the  clerk  of  the  Common  Pleas  Court  of  County,  Ohio,  and  to  me 

directed  and  delivered,  I  will  offer  for  sale  at  public  auction,  at  the  front 

door  of  the  court  house,  in  Ohio,  on  ,    19 ,  between 

and  o'clock  M.  of  said  day,  the  following  described  .lands 

and  tenements,  to-wit:     (Here  insert  description  of  real  estate.) 

First  parcel  appraised  at  $ . 


Second  parcel  appraised  at  $- 
Terms  of  sale,  cash. 


W.  S.  R.,  Sheriff. 

19 .  A.  C.  R.  Deputy. 


No.  45.     Sheriff's  return  of  his  sale. 

The  State  of  Ohio,  County,  ss.: 

Received  this  writ  this  day  of  ,   19 ,  at  

o'clock  m.,  and  pursuant  to  its  command,  I  did,  on  the  day 

of  .    19 ,  summon   G.  A.   B.,   I.  H.   and  H.  G.  J.,   three   disin- 
terested freeholders,  residents  of  said  County,  who  were  by  me 

duly   sworn   to  view   and  appraise   the  land  and   tenements   in   said   writ 
described. 


MERWINE    ON    REAL    ACTIONS.  134 

And  afterward,  on  the  day  of  ,  19 ,  said  ap- 
praisers returned  to  nie,  under  their  hands  that  they  did,  upon  actual 
view  of  the  premises  estimate  and  appraise  the  real  value  in  money  of  the 
.same,  as  follows:      First   parcel  at  $— — '•,   second  parcel  at  $ . 

A  certified   copy   of   said   appraisal    1    forthwith    deposited   in    the   office 

of  the  clerk  of  the  Court  of  Common  Pleas  of  said  County.      And 

on  the  day  of  ,    19 ,  I  caused   to  he  advertised   in  the 

(a   newspaper   printed  and  published  and  of  general   circulation 

in  said  County)    said   lands  and   tenements  to  be  sold   ;it    public 

auction   at    the  front   door  of  the  court  house  of  said  county,   in   the  city 

of  ,  on  the  day  of  ,   19 ,  between  the  hours 

of  and   o'clock  m.   of   said   day.      And   having   advertised 

the  said   lands  and   tenements  for  more   than   thirty   days  previous   to  the 

day   of   sale,  to-wit:      consecutive   weeks,   I   did,   in  pursuance  to 

said  notice,  on  said  day  of  ,  19 ,  at  the  time  and  place 

above    mentioned,    proceed    to    offer    said    lands    and    tenements    at    public 
sale,  at  the  front  door  of  said  court  house,  and  then  and  there  came  N.  R. 

II.,  who  bid  the  sum  of  $ for  said   property,  and   said  sum  being 

not   less  than  two-thirds  of  the  appraised  value  thereof,  and  said  N.   R.  H. 
being    the    highest    and    bed    bidder    therefor,    1    then    and    there    publicly 

sold- and  struck  off  said  lands  and  tenements  to  him  for  the  sum  of  $ . 

II.  S.  R.,  Sheriff. 
By  A.  C.   R.,  Deputy. 

No.  46.     Confirmation  of  sale  and  order  for  deed  and  distri- 
bution. 

B.  T.  Co., 

Plaintiff, 

vs.  No.  . 

I.  YV.  G.,  E.  M.  G.  and  .1.   G.  H„ 

/><  f{  ndants. 

This  day  this  cause  came  on  for  hearing  upon  the  motion  to  confirm 
the  sale  made  herein,  and  thereupon  the  order  of  sale,  proceedings  there- 
under and  the  return  thereof  were  produced  to  the  court.  On  consideration 
whereof  the  court  finds  the  same  to  be  regular  and  strictly  according  to 
law  and  the  said  proceedings  and  sale  are  hereby  approved  and  confirmed. 

The  court  further  finds  that  the  purchaser  of  said  premise-.,  N.  R.  11., 
has  fully  paid  the  judgment  of  the  plaintiff  herein,  and  that  a  convey- 
ance should  be  made  to  said  purchaser  subject  to  the  mortgage  set  forth 
in  the  cross-petition  of  the  defendant,  .1.  II.  G.,  and  subject  to  the  life 
estate  of  E.  M.  i;. 

H  i-  therefore  hereby  ordered  that  the  sheriff  shall  make  and  exe- 
cute to  -aid  purchaser,  >-'.  \\.  II.,  a  good  and  sufficient  deed  of  the  real 
estate  described  in  the  petition,  and  being  the  following  described  real 
estate,  to-wit:      (Here  insert  description  of  real  estate.) 

I  lie   court   finds   that    the   said    judgment   of   the   plaintiff   so   paid    and 

satisfied  by  the  said    purchaser  amounts  to   the  sum  of  $ ,  and   the 

amount,  due  and  owing  upon  the  said  mortgage  to  J.  II.  G.  $ .     The 


L35  FORMS. 

coats    herein    taxed,    which    the    said    purchaser    has    paid,    amount    to    the- 

sum  of  $ . 

The  court    further    finds   that    there   remains   of  the   purchase   price   so 

paid  by  the  snid  N.   R.  II.  the  sum  of  $ ,  which  the  said  sheriff  is 

hereby    ordered  to   pay  tit   the   said   E.   W.  G. 

No.  47.     Sheriff's  deed  in  such  case. 

To  nil  persons  to  whom   these  presents  co»ie.  Greeting: 

Whereas,  On  the  day  of ,   190 — ,  plaintiff  filed  its 

certain  petition,  and  then  and  there  commenced  a  civil  action  in  the  Court 

of  Common  Pleas  in County,  Ohio,  against  the  said  .1.  W.  G.  et  al  , 

and  numbered  on  the  docket  of  said  court  as  Case  No.  .  praying  therein, 

among  other  things,  for  a  judgment  aglEinst  the  defendants  in  said  case; 
and. 

Whereas,    Such    proceedings    were    had    in    said    action    that,    by    the 

consideration  and  judgment  of  said  court  on  the  day  of  , 

19 .   in    the   term.    19 ,   the   said   ,    plaintiff,    recov- 
ered   a    judgment    against    the    said   L.    F.   R.   and    1.   W.   G.    in   the    sum 
$ ami  costs  of   suit;    and, 

Whebeas,  Said   judgment  of  said  court  remaining  in  part  unpaid. 

an  execution  was  issued  out  of  said  court  directed  to  the  sheriff  of  

County,  and  said  sheriff,  under  said  execution,  having  levied  the  same  o:i 
the  real  estate  hereafter  described,  and  having  returned  the  same  for 
further  proceedings;    and. 

WHEREAS,   Afterwards,   on    the  day   of  ,   plaintiff  filed   its 

petition  in  County,  the  county  wherein  said  levy  was  made  afore- 
said, and  then  and  there  commenced  a  civil  action  in  the  I  ourt  of  Com- 
mon Pleas  in  County,  Ohio,  against  the  said  J.  W.  G.  et  al.,  and 

numbered    on    the    docket    of    said    court    as    case    No.    ,    pray  in  ; 

therein,  among  other  things,  tin-  sale  of  said  real  estate  hereinafter  de- 
scribed, and 

Whereas,  Such  proceedings  were  had  in  said  action  that,  by  the  con- 
sideration and  judgment  of  -aid  court  on  the day  of ,  19 , 

in    the    term    of    19 .    that   said    plaintiff   recovered    a   judgment    against 

said   I.  W.  G.  in  said  court  in  the  sura  of  $ .  and   the#COSts  of  suit, 

and 

Whereas,  It  was  then  and  there  further  ordered,  adjudged  and  decreed 
by  -aid  court  in  said  action  that,  unless  the  said  defendant  1.  W.  G. 
should    pay    the    costs    of    -aid    -nit.    and    the    said    plaintiff    the    amount    •■> 

found  due.  within  days  from  the  entry  of  said  decree,  said  premis   i 

should  lie  sold,  and  an  order  of  sale  should  issue  therefor  to  the  sheriff  of 
said  county,  commanding  him  that  be  should  cause  the  lands  and  tene- 
ment- in  said  petition  and  order  mentioned  and  hereafter  described  to  he 
appraised,  advertised  ami  sold  according  to  law.  and  return  his  proceed- 
ings to  said  court ;   and 

Whereas,  Afterwards,  on  the  day  of  ,  19 ,  in  pursu- 
ance of  said  orders  and  judgment  of  said  conn    and thereon,  an 

order  of  sale  issued   from  said   court  in  said   cause,  directed   to  said  sheriff 


MERWINE    ON    REAL   ACTIONS.  136 

of  said  county,  commanding  him  to  execute  said  order,  and  in  all  things 
to  be  governed  by  the  provisions  of  the  statute  in  such  case  made  and 
provided,  and  the  said  order,  with  his  proceedings  thereon,  he  should 
make  due  return;  and 

Whereas,  ,  sheriff  as  aforesaid,  having  caused  said  prem- 
ises to  be  appraised  and  a  copy  of  the  appraisement  to  lie  duly  filed  in  the 
office  of  the  clerk  of  said  court,  and  having  advertised  the  time  and  place 
of  selling  the  same  in ,  a  newspaper  printed  and  of  general  circu- 
lation in  said  county  for  a  period  of  days  prior  to  the  day  of  sale, 

and  otherwise  complied  with  said  orders  and  the  provisions  of  the  statute 

in  such  case  made  and  provided,  did,  on  the  day  of  ,  19 , 

at  the  door  of  the  court  house  in  said  county,  at  o'clock  —  M.  of 

said  day,  expose  to  sale  at  public  auction  the  premises  hereafter  men- 
tioned, and  thereupon,  having  bid  for  said  premises  the  sum  of 

$ ,  and  the  said  sum  being  the  highest  and  best  bid  offered  for  the 

same,  and  being  more  than  two-thirds  of  the  appraised  value  thereof,  the 

said  premises  were  then  and  there  struck  off  to  him,  the  said ,  the 

purchaser,  for  the  sum  above  mentioned;  and 

Whereas,  The  said  court,  at  its  term,  19 ,  having  exam- 
ined the  proceedings  aforesaid  in  the  premises  under  said  orders  of  sale, 
and,  being  satisfied  that  the  sale  aforesaid  had  been  made  in  all  respects 
in  pursuance  to  said  judgment  and  order  of  sale,  and  in  accordance  with 
the  provisions  and  requisites  of  the  statute  regulating  such  sale,  did  order 

that   such   sale    should   be   confirmed,    and    that    said   sheriff   of   

County,  Ohio,  should  convey  said  real  estate  by  deed  in  fee  simple  to  the 
purchaser,  . 

Now,  Know  Ye,  That  I,  the  said  ,  sheriff  of  County, 

Ohio,  as  aforesaid,  by  virtue  of  said  judgment,  order  of  sale,  and  confirma- 
tion, and  of  the  statute  for  such  cases  made  and  provided,  and  for  and  in 

consideration  of  said  premises  herein,  and  the  sum  of  $ ,  which  I 

acknowledge  to  have  received  from  the  purchaser  above  named,  do  hereby 

grant,  sell  and  convey  unto  him,  the  said  ,  his  heirs  and  assigns 

forever,  the  following  real  estate,  situated  in  the  County,  Stale 

of  Ohio,  and   in  ,  and  bounded   and  described  as  follows:     (Here 

insert  description  of  real  estate),  together  with  the  privileges  and  appur- 
tenances thereunto  belonging,  and  all  the  right,  title  and  interest  of  the 
said  I.  W.  G.,  and  of  all  the  other  parties  of  said  suit  on,  in  and  to  the 
same. 

To  Have  and  to  Hold  the  premises  aforesaid  unto  the  said ,  his 

heirs  and   assigns  forever,  as  fully  and  completely  as  I,  the  said  sheriff  of 

said   County.   Ohio,   by   virtue    of   said   judgment,   order   of   sale, 

sale  and  contirmation,  and  of  the  statute  made  and  provided  for  such  cases 
might  and   should  sell  and  convey  the  same. 

I>:  Testimony  WHEEEOF,  I  have  hereunto  set  my  hand  and  seal  this  

day  of  ,  19 . , 

Sheriff  of  County,  Ohio. 

Signed,  sealed  and  acknowledged  in  the  presence  of: 


137 


FORMS. 


State  of  Ohio, County,  ss.  : 

Personally  appeared  before  me,  a  notary  public  in  and  for  said  county, 

the  above  named  ,  sheriff  of  County,  Ohio,  the  grantor 

in  the  above  deed  of  conveyance,  who  acknowledged  the  signing  and  sealing 
of  the  same  to  be  his  voluntary  act  and  deed  for  the  uses  and  purooses 
therein  mentioned. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this  

day  of  ,  19 . 


Notary  Public  within  and  for  said  County,  Ohio. 


CHAPTER  III. 


SALE  OF  REAL  ESTATE  UNDER  WRIT  OF  ATTACHMENT. 


SECTION. 

141.  General   principles. 

142.  An  auxiliary   remedy  allowed 

only  after  an  action  is  be- 
gun. The  purpose  of  the 
writ. 

143.  When    an    action    is    deemed 

commenced. 

144.  Cross-petitioner   is  entitled  to 

the   writ. 

145.  Jurisdiction.     Entry     of     ap- 

pearance.     Service   of    sum- 
mons. 
1 4 1 J .     Should     summons     l>e     issued 
when    defendant     is    a     non- 
resident of   the  State? 

147.  When   service  may  be  had  by 

publication  on  non-resident 
defendants  in  attachment 
proceedings. 

148.  Affidavit     necessary     in     such 

cases. 
140.      How  publication   is  made. 
150.      When  service  is  complete  and 

how  proven. 
LSI.      When    personal    service    may 

be  had  out  of  the  State. 

152.  Grounds  for  the  attachment. 

153.  When  the  defendant  is  a  for- 

eign   corporation. 

154.  When    a    defendant    is    a    non- 

resident   of   the   State. 

155.  Has  absconded   with    intent  to 

defraud    his    creditors. 

156.  Fraudulenl       disposition      of 

property. 

157.  When  the  obligation  lias  1 n 

fraudulently  or  criminally 
incurred. 

158.  Requisites  of   the  affidavit  in 

attachment . 

159.  Filing  of  the  all'nlavit    is  juris 

dictional.  The  grounds  of 
the  attachment  I"  be  stated 
in  the  affida\  it  t  berefor. 


SECTION. 

160.  The  kind  of  actions  in  which 

the  writ  of  attachment  may 
issue. 

161.  Attachment  orders  may  issue 

to    different    counties. 

162.  Bond    required   before   writ  i< 

issued. 

163.  The  order   of   attachment,   its 

command  and  to  whan  di- 
rected. 

164.  When    attachment   orders    are 

returnable. 

165.  Order     in    which    several    at- 

tachment orders  executed, 
ltiti.     The  manner   in  which  the  or- 
der   of    attachment    is    exe- 
cuted. 

167.  When        property        attached 

may  be  delivered  to  the  per- 
son with  whom  found. 

168.  Several    attachments    may    be 

made  by  the  same  officer. 

169.  How    subsequent    attachments 

may    be    made. 

170.  Oilicer's    return    of    the     writ 

and  the  time  when  the  prop- 
erty   is    bound. 

171.  How      an      attachment      may 

be  discharged  and  bond  for 
same.  Bond  where  action  is 
brought  for  causing  death. 

172.  Undertaking     may     he     exe- 

cuted  in   vacation. 

173.  Effect     of     judgment      for     de- 

fendant   in    attachment. 

174.  Proceedings     after     judgment 

for  plaintiff. 
17~>.     When    questions    of    priority 
of  several  attachments  may 
be   ri  ferred. 

176.  Death    of    defendant    <\c.i><.    not 

end  attachment    proceedings. 

177.  <'aM's    iii    which    plaint  ill'    may 

he  required  to  jrive  addi- 
tional security. 

138 


139 


REAL    ESTATE    UNDER    ATTACHMENT. 


§141 


SECTION. 

178.  Attachment      discharged      l>y 
motion      for      that      purpose, 

and  evidence  in  such  cases. 

179.  Proceedings    in    error    to    re- 

verse,  vacate   or   modify   or- 
der discharging  attachment. 

180.  Error  proceedings  to   reverse, 

order     discharging     attach- 
ment.     Bond   in    such   cases. 

181.  When  administrator  or  execu- 

tor   may    file    such    petition 
in   error. 

182.  An    attachment    may    he    had 

hefore  debt  is  due.     Grounds 
for  such  attachment. 


SECTION. 

is:;.  Who  may  grant  the  affidavit 
therefor. 

1S4.  Action  to  lie  dismissed  if  writ 
is  refused. 

IS.").  Order  must  specify  amount 
for  which  writ  is  allowed. 

lSti.     Bond  required  in  sueli  cases. 

187.  Such  actions  to  be  continued 
until    the  claim    is   due. 

1S8.  How  far  other  provisions  of 
attachment   law  applicable. 

189.  How  to  proceed  before  a  jus- 
tice of  the  peace  when  de- 
fendant has  no  personal 
property,  but  owns  real  es- 
tate. 


Sec.  141.     General  principles. 

The  purpose  of  this  book  necessarily  makes  the  subject  treated 
in  this  chapter  quite  brief.  Only  so  much  of  the  law  of  attach- 
ment in  this  State  will  be  discussed  as  is  necessary  to  disclose 
the  essential  requisites  in  attachment  proceedings  to  give  a  good 
title  to  real  estate  bought  at  sheriff's  sales  in  such  actions.  The 
law  as  to  the  seizure  of  real  and  personal  property  by  writ  of 
attachment  is  so  interwoven  that  much  of  the  law  as  to  the  latter 
must  be  given  with  the  former,  but  about  the  only  difference 
between  them  is  the  manner  of  the  disposition  of  each  by  the 
officers  and  agents  of  the  court.  The  subject  of  the  seizure  of 
real  estate  by  the  writ  of  attachment  is  governed  and  controlled 
by  legislative  enactment,  and  being  so  controlled,  we  must  look 
to  the  statutes  on  this  subject  for  the  source  of  authority  to  the 
court  and  its  officers  for  their  action  in  such  proceedings.1 

Being  purely  statutory,  the  practitioner  in  such  proceedings 
must  pursue  the  terms  of  the  statute,  or  the  court  will  not  acquire 
jurisdiction  to  seize  hold  of  the  real  estate  and  sell  it  under  the 
writ.  This  remedy  by  attachment,  being  contrary  to  the  course 
of  the  common  law,  cannot  be  extended  beyond  the  strict  letter 
of  the  statute  authorizing  it;  for  it  has  always  been  the  policy 
of  our  courts  to  require  the  party,  pursuing  an  extraordinar" 


'  The  Buckeye  Pipe  Line  Co.  v. 
Fee.  G2  0.  S.  550.  "Proceedings  in 
attachment  are  not,  it  is  true,  ac- 
cording to  the  course  of  the  common 
law.      They   are,   under   our   system, 


a    proceeding    in    rem    intended    to 
subject  the  property  of  a  debtor  to 
the  payment  of  his  debts."     Lessee 
etc.,  v.  Loring,  7  O.  425. 


§§1-42,  1-13  MERWINE    ON    REAL    ACTIONS.  140 

remedy  authorized  by  statute,  to  make  out  a  clear  case  for  judi- 
cial interference.2 

Sec.  142.    An  auxiliary  remedy  allowed  only  after  an  action 
is  begun — The  purpose  of  the  writ. 

The  writ  of  attachment  is  an  auxiliary  remedy,  to  be  issued 
or  allowed  only  after  an  action  has  been  begun,  and  it  has  been 
said  of  it  that  it  is  in  the  nature  of  an  execution  in  advance. 
The  function  of  the  writ  is  to  seize  hold  of  the  real  estate  in 
advance  of  the  hearing  of  the  case  and  to  hold  it  in  court  until 
a  final  judgment  is  had  in  the  case.  It  follows,  then,  as  a  mat- 
ter of  course,  that  if  the  judgment  of  the  court  is  against  the 
claim  of  the  plaintiff,  the  whole  proceedings  fail,  but  that  if  the 
judgment  in  the  case  is  given  to  plaintiff  on  the  issues  of  the 
case,  then  so  much  of  the  real  estate,  so  seized  under  the  writ, 
is  sold  as  will  be  necessary  to  satisfy  the  amount  of  the  judg- 
ment.3 

Sec.  143.     When  an  action  is  deemed  commenced. 

In  an  action  where  the  order  of  attachment  was  issued  upon 
the  filing  of  an  affidavit  and  the  giving  of  a  bond,  the  order  was 
issued  and  served  on  the  defendant,  and  thereafter  on  the  same 

2  Egan  v.  Lumsden,  2  Disn.  1'68;  Carty  v.  Fenstermacher,  14  O.  S. 
Taylor  v.  McDonald,  4  0.  155;  Col-  457;  Ward  v.  Howard,  12  O.  S.  158. 
well,  Admr.,  v.  Bank,  2  U.  221);  In  Leebman  v.  Ashbacker,  36  0.  S. 
Hoyman  v.  Beverstock,  8  «C.  «C.  477;  '94,  it  was  held  that  the  real  estate 
Market  National  Bank  v.  Pierson,  3  seized  is  in  the  custody  of  the  law 
\Y.  L.  J.  132.  In  this  connection  it  ""til  discharged  by  one  of  the  modes 
was  said  by  the  .court  in  Union,  etc.,  prescribed.  If  judgment  is  rendered 
v.  Packard  et  al.,  1  C.  C.  78,  and  for  the  plaintiff,  it  shall  be  satis- 
approved  by  the  court  in  Hoyman  Aed  out  of  the  property  seized,  and 
v.  Beverstock  et  al.,  "8  C.  «C.  474 :  if  there  is  not  sufficient  for  that 
"An  attachment  is  an  extreme  rem-  purpose,  execution  may,  where  de- 
edy,  and  the  attaching  creditor  must  fendant  has  been  personally  served 
bring  his  case  within  the  letter  of  or  his  appearance  entered  in  any  of 
the  law  to  get  'the  strong  arm  <  ,'  the  modes  provided  by  law,  issue 
the  court'  to  take  the  property  of  as  in  other  cases  to  collect  the 
the  debtor  from  his  possession  be-  residue  of  the  judgment.  It  is  a 
fore    judgment."  proceeding    in    rem-.      Buckeye,    etc., 

sRempe   v.   Haven-,  (IS  0.  S.   113;  v.     Fee,    62     O.     S.    543;     see    also 

Siebert    v.    Switzer,    ::.">    0.    S.    661;  Crumb  v.  Treuber.  2  Cleve.  L.  Rep. 

Vallcttc  v.   Ky..  2   Hand.   1;   Egan  v.  257;    Paine  v.   Moorland.  15  O.  436; 

Lumsden,     2     Disn.     168;     Central,  Cohr-un  v.  Loring,   17   0.  409. 
etc.,    v.    Lagenbach,    1    N.    P.    124; 


141 


REAL   ESTATE    UNDER   ATTACHMENT. 


§144 


day  the  petition  was  filed,  and  upon  such  state  of  facts  the  court 
held  that  the  attachment  was  issued  without  authority  of  law, 
and,  as  against  other  attaching  lienholders,  gave  no  priority. 

The  statute  does  not  authorize  an  attachment  except  in  an 
action,  and  the  clerk  of  the  court  has  no  authority  to  issue  the 
order  of  attachment  until  an  action  is  brought,  and  the  relation 
of  the  piaintiff  and  defendant  is  established  in  the  case/ 

Sec.  144.     Cross-petitioner  is  entitled  to  the  writ. 

While  the  statute  reads  that  the  plaintiff  may  have  the  writ, 
yet  a  nisi  prius  court  has  held  in  a  mandamus  case,  seeking  to 
compel  the  clerk  to  issue  the  writ,  that  a  cross-petitioner  defend- 
ant was  entitled  to  the  writ.5 


4Seibert  v.  Switzer,  35  0.  S.  661. 
It  was  held  in  this  case:  "An  ac- 
tion is  commenced  or  brought,  with- 
in the  meaning  of  §§  192  and  193, 
by  the  filing  of  a  petition  and  caus- 
ing a  summons  to  issue  thereon. 
Code,  §  55.  Until  then  there  is  no 
action  in  which  an  attachment  can 
issue.  It  is  a  remedy  auxiliary  to 
an  action  for  a  money  judgment.  It 
is  a  writ  in  aid  of  the  plaintiff, 
granted  in  certain  cases  before  he 
could  have  execution.  Without  an 
action  there  is  no  foundation  for 
this  auxiliary  proceeding.  Nor  do 
we  think  that  the  subsequent  com- 
mencement of  an  action,  although 
on  the  same  day,  cures  this  defect. 
The  order  of  attachment  being  is- 
sued by  the  clerk  of  the  court  be- 
fore action  brought,  was  unauthor- 
ized and  void,  and  the  subsequent 
commencement  of  an  action,  al- 
though on  the  same  day,  could  not 
vitalize  it  so  as  to  give  it  priority 
over  other  valid  liens.  This  con- 
clusion is  supported  by  the  follow- 
ing cases  in  point:  Pope  v.  Hiber- 
nia  Ins.  Co.,  24  Ohio  St.  481;  En- 
del  v.  Leibrock,  33  Ohio  St.  254; 
Kerr  v.  Mount,  28  X.  Y.  659; 
WafTer  v.  Goble,  53  Barb.  517;  Kel- 
ley  v.  Strayer,  15  Hun,  97."  And 
in  Central,  etc.,  v.  Longabush,  1  N. 
P.  124,  it  was  said:  "No  attach- 
ment can  issue  until   a  civil  action 


is  commenced  bv  the  filing  of  a 
petition  and  causing  a  summons  to 
issue  thereon.  The  issuing  of  a 
summons  is  as  important  an  ele- 
ment in  the  commencement  of  an 
action,  as  is  the  filing  of  a  petition. 

A  civil  action  must  be  commenced 
by  filing  in  the  office  of  the  clerk  of 
the  proper  court  a  petition  and 
causing  a  summons  to  be  issued 
thereon.  Until  an  action  is  so  com- 
menced, there  is  no  action  in  which 
an  attachment  can  issue.  See  also 
Stone  v.  Whittaker,  61  0.  S.  194; 
Wherlin  v.  Macke,  15  W.  L.  B.  125; 
Mawieke  v.  Wolfe,  2  W.  L.  B.  87. 
See  Xos.  48  and  49  for  forms  fir 
the  petition   and   affidavit. 

3  State  ex  rel.  v.  Hob.-on,  7  X.  P. 
187.  In  this  latter  case  the  court 
said:  "This  view  is  supported  by 
the  case  of  40  0.  S.  344,  where  a 
default  judgment,  taken  against  a 
plaintiff  on  cross-petition,  was  set 
aside  for  the  reason  that  the  judg- 
ment was  taken  prematurely,  the 
plaintiff  being  entitled  to  the  same 
length  of  time  to  answer  the  cross- 
petition  that  the  defendant  has  to 
answer  the  petition.  From  analogy, 
if  a  plaintiff  can  be  treated  as  a 
defendant,  as  in  that  case,  the  de- 
fendant can  be  treated  as  a  plaintiff, 
and  the  attachment  prayed  for  in 
this   ease   should  issue." 


§§  145-147  MERWINE    ON    REAL    ACTIONS.  142 

Sec.    145.     Jurisdiction — Service   of   summons — Entry    of   ap- 
pearance. 

In  order  that  a  court  in  attachment  eases,  as  in  ail  other  eases, 
may  have  the  power  to  sell  real  estate,  there  must  be  a  service 
of  legal  process  on  the  defendant,  or  his  appearance  must  be 
entered  in  some  manner.  The  defendant  can  enter  his  appear- 
ance by  being  present  at  the  hearing  with  his  counsel  and  par- 
ticipating in  the  trial,  and  the  record  of  the  case  discloses  such 
state  of  facts,6  or  by  interposing  a  demurrer  to  the  petition,7  or 
coming  into  the  case  by  motion,  or  otherwise  objecting  to  the 
power  of  the  court  to  hear  the  action." 

But  the  appearance  of  a  defendant  for  the  sole  purpose  of 
objecting  to  the  jurisdiction  of  the  court  over  his  person  is  not 
such  an  entry  of  appearance  as  will  give  the  court  jurisdiction 
of  the  ease.9 

Sec.  146.     Should  a  summons  be  issued  when  the  defendant  is 
a  non-resident  of  the  State? 

It  has  been  held  by  some  of  the  courts  of  this  State  that,  where 
the  defendant  is  a  non-resident  of  the  State,  it  is  not  necessary 
to  issue  a  summons  and  have  the  same  returned  "not  found" 
before  the  service  can  be  had  upon  such  non-resident  by  pub- 
lication.10 

And  it  has  been  held  by  other  courts  that,  if  in  an  attachment, 
case  against  a  non-resident  defendant,  no  summons  is  issued  nor 
any  affidavit  filed  to  obtain  service  by  publication,  the  court  will 
not  obtain  any  jurisdiction  over  either  the  person  or  property 
of  the  non-resident  defendant,13 

Sec.  147.     When  service  may  be  had  by  publication  on  non- 
resident defendants  in  attachment  proceedings. 
Service  may  he  had  by  publication   in   ;ill   actions  in   which   it- 
is  sought   by  ;i  provisional  remedy  to  take  or  appropriate  in  any 
way  the   property  of  the  defendant,  when   the  defendant   is  a 

o  Baltimore,  etc.,  \.  Goodman,  ..-  Rec.   14;   Smith  v.  Whittlesy,   10  C. 

W.   I..    I'..  237.  C  412.      In    Hcii.l.TM.n   v.   Stettner, 

"  Vlyrr-   V.    Smith.  -J'.l   O.  S.   120.  :i]      Kan.     ."ill.     the    court     s;iid     that 

8 Caldwell  v.  Burton.  7  X.  I'.  525.  the   issuing  of  a   summons   and    its 

o  Elliot!     \.    Lowhead,    43    < ».    S.  return"  on  a    non-residenl    defendant 

171.  luil   see   Reich  v.  Pike,  8  X.  I'.  was   "an   absolute   absurdity." 

234-.    Mawick   v.  Wolf,  ::   \V.    I..    B.  "  Larwell   v.  Stevenson,  19  C.  0. 

4.">!i.  441).   affirmed    without    report   in   6G 

Jo  Pratt    v.    Sherman,    1    (lev..    L.  0.  S.  083. 


143  REAL    ESTATE    UNDER    ATTACHMENT.  §§  148-151 

foreign  corporation,  or  a  non-resident  of  this  State,  or  the  defend- 
ant 's  place  of  residence  cannot  be  ascertained.12 

Where  an  action  is  begun  for  the  recovery  of  money  in  this 
State,  jurisdiction  of  the  defendant  may  be  acquired  by  service 
by  publication,  where  the  action  is  brought  against  a  non-resident 
of  the  State  having  property  in  this  State,  or  to  be  taken  by 
process  of  attachment.13 

Sec.  148.     Affidavit  necessary  before  service  by  publication. 

Before  service  by  publication  can  be  made,  an  affidavit  must 
be  filed  that  service  of  summons  cannot  be  had  within  this  State 
on  the  defendant  to  be  served  by  publication,  and  that  the  case 
is  one  of  those  mentioned  in  section  five  thousand  and  forty-five, 
Revised  Statutes,  and  when  such  affidavit  is  filed  the  party  may 
proceed  to  make  service  by  publication.14 

Sec.  149.     Kow  publication  is  made. 

The  publication  must  be  made  for  six  consecutive  weeks  in  a 
newspaper  printed  in  the  county  where  the  petition  is  filed,  or, 
if  there  is  no  newspaper  printed  in  the  county,  then  in  a  news- 
paper printed  in  this  State  and  of  general  circulation  in  such 
county.  If  it  be  made  in  a  daily  newspaper  one  insertion  a 
week  will  be  sufficient,  and  it  must  contain  a  summary  state- 
ment of  the  object  and  prayer  of  the  petition,  mention  the  court 
wherein  it  is  filed,  and  notify  the  person  or  persons  thus  to  be 
served  when  they  are  required  to  answer.15 

Sec.  150.     When  service  is  complete  and  how  proven. 

Service  by  publication  shall  be  deemed  complete  at  the  date 
of  the  last  publication,  when  made  in  the  manner  and  for  the 
time  prescribed  in  the  preceding  sections,  and  such  service  must 
be  proven  by  affidavit.10 

Sec.  151.     When  personal  service  may  be  had  out  of  the  State. 

When  service  may  be  made  by  publication,  personal  service 
of  a  copy  of  the  summons  and  petition  may  be  made  out  of  the 
State,  and  such  service  must  be  proved  by  affidavit.17 

12  Gen'l     Code,     §11292     (R.     S.  §5047).      See   Xo.    53    ei    seq.,    for 

§  5045 ) .  forms. 

is  National  Bank,  etc.,  v.  Railway,  "  Gen'l     Code,     §11296      (R.     S. 

21    O.  ,S.   221,  §5048).     'See   No.   54    for    form   of 

14  Gen'l     Code,     §11293      (R.     S.  affidavit. 

§5046).    See  No.  53  for  form.  it  Gen'l     Code,     §11297      (R.     B. 

15  Gen'l     Code,     §11295      (R.     S.        §5049). 


§  152  MERWINE    ON   REAL    ACTIONS.  144 

Sec.  152.     Grounds  for  the  attachment. 

In  order  that  the  court  may  have  jurisdiction  to  issue  the  writ 
of  attachment,  there  must  be  filed  in  the  court  a  petition  against 
a  defendant,  or  defendants,  stating  the  cause  of  action,  and  there 
must  also  be  filed  an  affidavit  showing  one  or  more  of  the  ten 
grounds  set  forth  in  the  statute  authorizing  the  writ  of  attach- 
ment. The  statute  setting  forth  the  grounds  of  attachment  pro- 
vides that  in  all  civil  actions  for  the  recovery  of  money  the 
plaintiff  may,  at  or  after  the  commencement  thereof,  have  an 
attachment  against  the  property  of  the  defendant  upon  the 
grounds  herein  stated:  (a)  When  the  defendant,  or  one  of  sev- 
eral defendants,  is  a  foreign  corporation,  except  as  provided  by 
an  act  entitled,  "An  act  to  further  supplement  section  one  hun- 
dred and  forty-eight  of  the  Revised  Statutes,"  passed  May  16, 
1894  (91  0.  L.  272),  and  except  as  provided  by  an  act  entitled, 
;<An  act  to  amend  section  one  of  an  act,"  etc.,  passed  May  19, 
1894  (91  0.  L.  355),  or  a  non-resident  of  this  State,  or  (b)  has 
absconded  with  intent  to  defraud  his  creditors,  or  (c)  has  left 
the  county  of  his  residence  to  avoid  the  service  of  a  summons,  or 
(d)  so  conceals  himself  that  a  summons  cannot  be  served  upon 
him,  or  (e)  is  about  to  remove  his  property,  or  a  part  thereof, 
out  of  the  jurisdiction  of  the  court  with  the  intent  to  defraud 
his  creditors,  or  (f)  is  about  to  convert  his  property  or  a  part 
thereof  into  money  for  the  purpose  of  placing  it  beyond  the 
reach  of  his  creditors,  or  (g)  has  property  or  rights  in  action 
which  he  conceals,  or  (h)  has  assigned,  removed,  disposed  of  or  is 
about  to  dispose  of  his  property  or  a  part  thereof  with  the  intent 
to  defraud  his  creditors,  or  (i)  has  fraudulently  or  criminally 
contracted  the  debt  or  incurred  the  obligations  for  which  suit  is 
about  to  be  or  has  been  brought,  or  (j)  that  the  claim  is  for  work 
or  labor  or  for  necessaries. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the 
defendant  is  a  foreign  corporation  or  a  non-resident  of  this  State, 
for  any  claim  other  than  a  debt  or  demand  arising  upon  con- 
tract, jnd<_nnont  or  decree,  or  for  causing  death  or  a  personal 
injury  by  a  negligent  or  wrongful  act.18 

'^Opn'I  Code,  §11819  (R.  S.  in  attachment,  No.  51  for  the  order 
§5521).     See   No.   54    for   affidavit       of  attachment. 


145  REM,    ESTATE    UNDEli    ATTACHMENT.  §§  153,  154 

Sec.  153.     When  the  defendant  is  a  foreign  corporatioi:. 

The  first  ground  for  the  issuing  of  an  attachment  in  a  civil 
action  for  the  recovery  of  money  is  that  when  the  defendant,  or 
one  of  several  defendants  is  a  foreign  corporation,  except  as  pro- 
vided by  an  act  entitled  "An  act  to  further  supplement  section 
one  hundred  and  forty-eight  of  the  Revised  Statutes,"  passed 
May  16,  1894  (91  O.  L.  217),  and  except  as  provided  by  an  act 
entitled  "An  act  to  amend  section  one  of  an  act,"  etc.,  passed 
May  19,  1894  (91  O.  L.  355). 

The  acts  mentioned  in  the  above  exceptions  now  are  §§  148c 
(Gen'l  Code,  §§  183  to  192  inclusive)  and  USd  of  the  Revised 
Statutes  (Gen'l  Code,  §§  178  to  186  inclusive),  and  these  sec- 
tions relate  to  the  requirements  of  the  law  as  to  foreign  cor- 
porations before  they  can  do  business  in  this  State.  These 
sections  relate,  among  other  things,  to  the  tiling  of  certain 
certificates  with  the  Secretary  of  State,  and  the  designation  of 
an  agent  of  the  company  in  this  State  upon  whom  legal  process 
can  be  served. 

The  evident  purpose  of  these  exceptions  is  to  place  all  of  the 
foreign  corporations  that  have  complied  with  all  of  the  laws  of 
this  State  on  an  equality  with  our  domestic  corporations. 

It  has  been  held  that  where  a  foreign  corporation  begins  pro- 
ceedings for  the  appointment  of  a  receiver,  and  deeds  its  prop- 
erty to  such  receiver,  a  creditor  resident  in  this  State,  who  files 
his  claim  in  that  court,  is  estopped  from  taking  proceedings  in 
attachment  to  subject  other  property  in  the  State  belonging  to 
the  company  to  the  payment  of  his  claim.19 

Sec.  154.     When  a  defendant  is  a  non-resident  of  the  State. 

The  next  ground  authorizing  the  writ  of  attachment  is  when 
tin-  defendant,  or  one  of  several  defendants,  is  a  non-resident 
of  this  State. 

For  a  construction  of  the  term  resident,  or  residence,  as  used 
in  this  statute,  we  cannot  turn  to  the  definition  of  the  word 
"residence"  as  used  with  reference  to  the  qualification  of  a 
voter.  In  such  cases  the  word  ' '  residence ' '  is  used  synonymously 
with  "domicile."  When  the  word  residence  is  applied  to  the 
attachment  laws  of  this  State,  it  is  not  convertible  with  domicile. 
This  is  upon  the  theory  that  for  the  time  being  a  party's  resi- 

19  Price  v.  Farriam,  7  N.  P.  189. 


§154 


MERWINE    CN    REAL    ACTIONS. 


146 


dence  may  be  in  one  place  and  his  domicile  in  another.  It  has 
been  held  by  onr  courts  that,  "It  is  the  actual  residence  of  the 
debtor,  and  not  his  domicile,  that  determines  hio  status  in  an 
attachment  proceeding  begun  in  the  county  where  his  property 
attached  is  situated;  and  if  he  has  no  abode  or  home  within  the 
State  where  process  can  be  served  on  him,  his  property  is  subject 
to  attachment,  notwithstanding  he  may  not  have  acquired  a  resi- 
dence elsewhere."  20 

When  a  party  left  this  State  with  his  family  for  another 
State,  with  the  intention  of  returning  in  case  he  could  com- 
promise with  his  creditors  there,  or  to  remain  if  he  could  not 
do  so  and  could  get  employment,  neither  of  which  happened,  and 
in  the  meantime  his  real  estate  in  this  State  was  seized  by  writ 
of  attachment  and  he  shortly  afterwards  left  for  a  third  State, 
it  was  held  that  these  facts  did  not  constitute  him  a  non-resident 
of  the  State,  the  court  holding  that  mere  non-residence  for  any 
length  of  time,  unless  aided  by  some  unequivocal  act  showing 
an  intention  not  to  return,  will  not  cause  the  loss  of  domicile 
here.21 

And  absence  from  one's  home  for  years,  where  the  intention 
is  to  return,  if,  in  the  meanwhile,  the  intention  to  return  is 
not  destroyed  by  some  unequivocal  act,  signifying  a  purpose  to 
change  the  domicile,  does  not  defeat  the  right  to  claim  the 
former  residence  as  if  it  had  never  been  interrupted  by  an 
absence.22 


20  Thompson  v.  Ogden,  3  C.  €.  N. 
S.  51.  The  facts  and  holding  in  this 
ease  were  these:  T.  White,  a  res- 
ident of  Ohio,  received  an  appoint- 
ment for  an  indefinite  term  in  one 
of  the  departments  of  the  govern- 
ment in  Wa  thington.  He  removed 
there  with  his  familv.  and  for 
twenty  years  lias  continued  t:>  live 
there,  but  lias  been  in  the  habit  of 
returning  to  Ohio  to  vol y  at  elec 
li.m-..  Held:  That  hi-  property 
located  in  (thin  is  subject  to  at- 
tachment on  the  ground  of  non-res- 
idence. Sec  also  Keller  v.  Carr.  42 
N.  W.  Rep.  2!>2:  4(1  Minn.  243; 
Carden  v.  Carden,  107  X.  C.  214; 
L2  S.  E.  Rep.  L97;  Sturgeon  v. 
Korte,  ."{4  O.  S.  525;  Wheeler  v. 
Cobb,    7.")   >.'.    C.   21;    Weitkamp   v. 


Loehr,  53  X.  V.  Supp.  Ct.  83;  Smith 
v.  Dallon,  1  C.  S.  C.  R.  151.  citing 
the  following  from  Drake  on  At- 
tachment. §58:  "Domicile  includes 
residence  with  intention  to  remain, 
while  no  length  of  residence  with- 
out the  intention  of  remaining,  con- 
stitutes  domicile." 

23  Smith  v.  Dalton,  1  C.  S.  C.  R. 
150;  [sham  v.  Gibbons,  I  Bradford, 
69;  Eaggart  v.  Morgan,  1  Seldom 
122;  Holmes  v.  Greene,  7  Gray, 
200:  Whitney  v.  Sherborn,  12  Al- 
len. Ill-,  the  matter  of  Thompson, 
1  Wend.  45:  Frost  v.  Brisbane,  1!) 
Wend.  14:  Pfoutz  v.  Com  ford,  36 
Pa.    St.    420. 

22  Egan  v.  Levusden,  etc.,  2  Dis- 
ney, 168. 


147  REAL   ESTATE    UNDER   ATTACHMENT.  §  155 

An  attachment  may  issue  on  the  ground  of  non-residency 
when  the  defendant  is  a  partnership  of  which  all  the  members 
reside  out  of  this  State,  the  partnership  being  formed  for  the 
purpose  of  carrying  on  business  here.  And  in  an  attachment 
against  the  property  of  such  non-resident  firm  it  may  be  sued 
by  its  company  name,  and  service  may  be  had  by  leaving  a  copy 
of  the  summons,  with  the  indorsements  thereon,  at  its  usual 
place  of  business  in  this  State.-3 

The  court  in  Byer  v.  Schlupe,  51  O.  S.,  300,  said:  "It  may 
perhaps  be  urged  that  although  the  individual  partners  com- 
posing a  firm  reside  in  another  State,  the  partnership  is  to  be 
deemed  resident  in  a  State  where  it  has  a  'usual  place  of  doing 
business.'  But  the  statute  in  prescribing  the  manner  of  service 
and  return  of  summons,  recognizes  both  a  place  of  residence 
and  a  place  of  doing  business.  And  the  one  is  not  to  be  regarded 
as  identical  with  the  other.  A  person  or  a  number  of  persons 
may  be  domiciled  or  reside  in  one  State  and  have  an  agent  and 
place  of  doing  business  in  another,  even  as  a  corporation  domiciled 
within  the  State  by  which  it  was  created  may  have  its  agent  and 
a  usual  place  of  doing  business  in  another.  The  principal 
action  may  exist,  and  the  partnership,  under  the  company  name, 
may  be  brought  into  court  throush  actual  service  by  leaving  a 
copy  of  the  summons  at  its  usual  place  of  business,  while  an 
auxiliary  proceeding  by  attachment  to  secure  the  rights  of 
creditors  may  be  sustained  by  reason  of  the  fact  of  non-residence, 
and  when  the  attachment  issues  it  is  not  necessary  that  there 
should  be  constructive  service  on  the  defendants  by  publication, 
but  there  may  be  service  of  process  at  the  usual  place  of  business 
which  they  have  established  in  this  State."24 

Sec.  155.     Has  absconded  with  intent  to  defraud  his  creditors. 

It  is  made  a  ground  of  attachment  for  a  defendant  to  abscond 
with  the  intent  to  defraud  his  creditors.  Under  this  provision 
of  the  statute  it  was  held  a  ground,  authorizing  an  attachment 
of  partnership  property  for  one  partner  to  abscond,  and  the 
others  to  dispose  of  a  part  of  the  partnership  property  and  to 

23Byers     v.     Schlupe.     51     0.     S.  280:   affirmed  in  56  0.  S.  754:    Dnbell 

300;     Gen'l    Code.     §8  11260.     11280  v.   Looker,    1    Hand.    574:    Taylor  v. 

("R.    S.    §§5011.    5042);     Fitzgerald  McDonald.    4    O.     140:     Cowdon    v. 

v.  Grinwell,  64  Ta.  261.  TTurford,    4    O.    133:    Winchester    v. 

z*  See   also   Smith   v.   Hoover,    39  Pierson,  3  W.  L.  J.   131. 
O.  IS.  249.  Halliday  v.  Clun,  9  C.  C. 


§156 


MERWINE    ON    REAL.    ACTiONS. 


148 


continue  to  dispose  of  the  rest  of  it ;  and  an  attachment  may  be 
laid  on  the  firm  property  where  one  partner  avoids  service  by 
process  by  absconding,  and  his  co-partner,  remaining  in  the  pos- 
session of  the  stock  of  goods  belonging  to  the  firm,  is  insolvent.25 

Sec.  156.     Fraudulent  disposition  of  property. 

It  is  also  made  ground  for  issuing  the  writ  of  attachment  for 
a  defendant  to  be  about  to  remove  his  property,  or  a  part  thereof, 
out  of  the  jurisdiction  of  the  court,  with  the  intent  to  defraud 
his  creditors.  Such  attachment  cannot  be  maintained  on  the 
ground  of  the  constructive  fraudulent  intent  to  dispose  of  or 
conceal  property,20  nor  will  the  formation  of  a  corporation  and 
the  transfer  to  it  by  a  creditor  of  his  property,  in  the  absence 
of  any  fraudulent  design,  be  sufficient,27  nor  a  conveyance  by  a 
creditor,  whose  solvency  is  doubtful,  to  his  wife,  without  con- 
sideration, made  without  intent  to  defraud,28  nor  will  it  be  suffi- 
cient to  authorize  the  issuance  of  the  writ  for  a  creditor  to 
remove  his  property  out  of  the  county  without  any  intent  to 
defraud  his  creditors.2 

it  is  not  sufficient  ground  to  authorize  the  issuing  of  the 
writ  for  a  debtor  to  pay  off  creditors  preferentially,30  nor  that 
a  debtor  is  hastening  to  pay  off  other  debts.31 

In  all  of  the  cases  where  an   attachment  is  asked  under  the 


25  Sellen  v.  Chresfald,  1  Hand. 
87.  See  No.  54  for  form  for  the 
affidavit  in  attachment.  The  reason 
for  the  remedy,  so  peculiar,  exclu- 
sive and  summary,  when  one  joint 
debtor  can  be  proceeded  against  by 
attachment,  when  the  other  may  be 
served  by  summons,  would  seem  to 
warrant  the  conclusion  that  the 
joint  property  may  be  reached  by 
process  against  one  debtor  only; 
and  the  analogy  a  Horded  from  the 
liability  of  all  members  of  the  firm, 
for  the  fraudulent  act  of  either  in 
the  course  of  the  partnership  busi- 
ness, indicates  that  similar  conduct 
on  the  pari  of  one  partner  might 
authorize  an  attachment  under  the 
(ode  against  all.  In  the  one  case 
the  right  is  involved;  in  the  other, 
the  remedy  merely."  Ibid.  Story 
on  Partnership.  §§109,  166;  Collyer 
on   Partnership,  3,   chap,    J,   §  5,   P, 


293-304;  Boardman  v.  Gore,  15 
Mass.  335 ;  Blair  v.  Broueley,  5 
Hare.  542  (Eng.  Ch.);  Stone  v. 
Marsh,  6  B.  &  C.  551;  Locke  v. 
Stearns,  1  Met.  562 ;  Rapp  v.  La- 
tham, 2  B.  &  A.  795. 

26  Hoyman  v.  Beverstock,  8  C.  C. 
473;  Beitnian  v.  Mackenzie,  1  W. 
L.  B.  272;  Chamberlain  v.  Strong, 
3  W.  L.  G.  2S1;  Market  National 
Bank -v.  Bethel,  32  W.  L.  B.  135; 
Jefferson  v.  Pursell,  8  Bee.  744; 
Eeidenheimer  v.  Ogden,  1  Disney, 
351. 

27  Union  v.  Packard,  1  C.  C.  76. 
ssMcFarlan  v.  Mills,  4  W.  L.  B. 

1064. 

28  McAllister  v.  Davy,  5  N.  P. 
274. 

so  Morton  v.  Sterritt,  4  N.  L.  G. 
132. 

3i  Morgan  v.  Hays,  10  W.  L. 
J,  83. 


149  REAL   ESTATE    UNDER    ATTACHMENT.  §  157 

grounds  of  the  statute  now  discussed,  the  practitioner  in  his 
affidavit  for  the  attachment  must  bring  himself  strictly  within 
the  grounds  set  forth  in  the  statute  or  the  court  will  have  no 
jurisdiction  to  hold  the  property  seized,  and  in  case  where  the 
attachment  is  sought  for  the  reason  that  the  defendant  is  about 
to  abscond,  or  remove,  or  convert  his  property  into  money  for 
the  purpose  of  placing  it  beyond  the  reach  of  his  creditors,  or 
fraudulently  and  criminally  contracted  the  obligation  sued  on, 
precise  and  definite  allegations  will  be  required,  and  both  the 
letter  and  the  spirit  of  the  law  be  satisfied  or  the  proceed- 
ings will  be  dismissed.32 

Sec.  157.     When  the  obligation  has  been  fraudulently  or  crim- 
inally incurred. 

It  is  still  another  ground  for  issuing  a  writ  of  attachment 
that  the  defendant  has  fraudulently  or  criminally  contracted  the 
debt  or  the  obligation  for  which  suit  is  about  to  be  or  has  been 
brought. 

The  writ  of  attachment  will  be  issued  when  the  defendant  has 
fraudulently  or  criminally  contracted  the  debt  by  creating  a 
claim  for  unliquidated  damages  due  plaintiff  by  assaulting  and 
beating  him; 33  it  will  be  issued  where  the  action  is  brought  for 
false  and  fraudulent  representations  as  to  the  value  of  prop- 
erty ; 34  and  it  will  be  issued  upon  the  ground  now  under  dis- 
cussion when  the  action  is  brought  to  recover  money  won  by 
defendant  b}T  means  of  a  gambling  device,  known  as  a  slot 
machine.35 

The  writ  will  not  be  allowed  under  the  ground  now  being 
discussed,  wdiere  the  action  is  brought  to  recover  for  the  bite 
of  a  vicious  dog  harbored  by  defendant,3"  nor  for  a  cause  of 
action  arising  from  a  malicious  attachment.37  nor  for  the  con- 
version by  an  agent  in  another  State  of  the  proceeds  of  certain 
claims  sent  to  him  by  a  bank  in  this  State  for  collection.38  nor 
where  the  claim  arises  from  a  liability  other  than  from  a  con- 
tract,3'-'  nor  in  a  case  where  the  obligation  was  fraudulently  in- 
curred on  account  of  a  debt  not  vet  due.40 

32fJury    v.    Tannemvalri.     IS     0.  3«  Wintering  v.  Conigan,  36  W.  L. 

481.  B.   86. 

33Sturtevant   v.    Tuttle.   22    O.   S.  37  Glidden   v.   Joy.   8  C.  C.    157. 

HI-  3s  Cleveland  v.    Ohio.   1   Disn.  469. 

s-i  'Shawnee  v.  Bank.  1  C.  i  I  X.  S.  39  lUd. 

•569.  40  Stone  v.   Banking  Co.,   8  C.  C. 

35  Wise  v.  Martin.  7  N.  P.  660.  636. 


§§  158,  159  MERWINE   ON   REAL    ACTIONS.  150 

Sec.  158.     Requisites  of  the  affidavit  in  attachment. 

An  order  of  attachment  shall  be  made  by  the  clerk  of  the 
court  in  which  the  action  is  brought,  in  any  case  mentioned  in 
Section  152  of  this  chapter,  when  there  is  filed  in  his  office  an 
affidavit  of  the  plaintiff,  his  agent  or  attorney,  showing : 

(a)  The  nature  of  the  plaintiff's  claim; 

(b)  That  it  is  just ; 

(c)  The  amount  which  the  affiant  believes  the  plaintiff  ought 
to  recover;  and 

(d)  The  existence  of  any  one  of  the  grounds  for  attach- 
ment enumerated  in  Section  152  of  this  chapter.41 

Sec.  159.     Filing-  of  the  affidavit  is  jurisdictional — The  grounds 
of  the  attachment  to  be  stated  in  the  affidavit  therefor. 

The  affidavit  mentioned  in  the  preceding  paragraph  is  one 
of  the  prime  essentials  in  validating  the  attachment  proceedings. 
Not  only  must  it  be  filed,  but  it  must  be  just  what  the  statute 
says  it  must  be.  It  must  also  set  forth  definitely  and  precisely 
one  or  more  of  the  grounds  of  the  statute  authorizing  the  writ 
of  attachment.  Indeed,  if  all  of  the  other  proceedings  in  the 
attachment  ease  are  regular  and  the  real  estate  is  sold  by  order 
of  the  court  to  a  purchaser  who  has  paid  full  value  for  it,  he 
will  not  get  good  title  to  the  land  if  this  affidavit  has  not  been 
filed  in  the  case,  or,  having  been  filed,  it  fails  to  show  all  of 
the  four  requirements  of  the  statute  as  above  indicated.  In  such 
a  case  our  court  of  last  resort  said: 

"No  affidavit  was  filed,  and  unless  the  petition  can  be  looked 
to  and  found  to  supply  this  important  omission,  the  writ  was 
void  and  no  jurisdiction  was  acquired  by  seizure  of  the  land 
under  it ;  and  if  no  valid  seizure  was  made,  no  service  by  publica- 
tion could  be  made.  *  *  *  We  think  that  the  faot  that  there 
was  not  the  requisite  affidavit  to  authorize  the  issuing  of  the 
attachment  renders  all  subsequent  proeeedings  under  it  void."4^ 

UGen'l      Tode.      §11820      (R.  S.  affiant-    is    the    agent    or    attorney. 

§  .").',■_' 2  i .     See  No.  54  for  form.  Winchester  v.   Pierson,  :?   W.  L.  J. 

■'■-  Endel     v.    Leibrock,    33    O.    S.  131.      This    faet   may    be    shown   by 

207.     The  affidavit  may  be  amended.  evidence    outside     of     the     affidavit. 

Patterson   v.  Gulnare,  2  Disn.   505.  Sutleff  v.  Shenago   Rank.    1   W.  L. 

The   affidavit    may   he   made   by   the  \1.    214.      An    affidavit    by   an   agent 

plaint  ill',     lii-     agent     or     attornev.  stating  "that   he   is    a    direetor   and 

White    v.    Stanley.    2!)    O.     S.    423.  agent     of     plaintiff,     a     corporation 

The    affidavit    need    not    affirm    that  duly  incorporated  under  the  laws  of 


151 


REAL    ESTATE    UNDER    ATTACHMENT. 


§160 


The  grounds  for  the  attachment  may  be  set  forth  in  the 
affidavit  therefor,  in  the  language  of  the  statute,  without  a  more 
particular  statement  of  the  facts  to  be  alleged ; 43  but  where  the 
affidavit  does  not  follow  the  precise  language  of  the  statute,  it 
will  be  sufficient  for  the  attachment  affidavit  if  it  contains 
language  fully  equivalent,  or  clearly  showing  the  ground  speci- 
fied or  intended.44 

Sec.  160.     The  kind  of  actions  in  which  the  writ  of  attachment 
may  issue. 

It  is  provided  by  the  attachment  law  that  the  plaintiff  may, 
at  or  after  the  commencement  of  a  civil  action,  have  the  writ  of 
attachment  against  the  property  of  a  defendant.45 

This  provision  of  the  statute  extends  the  remedy  to  all  actions 
for  the  recovery  of  money  whether  sounding  in  contract  or  in 
tort,  and  the  attachment  may  be  obtained,  if  the  action  be  for 


Ohio."  is  sufficient.  Shawnee  v. 
Miller,  1  C.  C.  N.  S.  509.  Attor- 
ney may  mean  anyone  who  appears 
for  another.  Ward  v.  Ward,  20  C. 
C.  136.  Personal  knowledge  of 
agent  not  essential.  White  v.  Stan- 
ley. 29  O.  S.  443.  Where  affidavit 
is  made  by  attorney  it  need  not 
show  why  it  is  not  made  by  plain- 
tiff. Ibid.  The  affidavit  may  be 
made  by  a  prochein  ami.  McDow- 
ell v.  Nunis,  15  W.  L.  B.  359.  An 
affidavit  taken  before  plaintiff's  at- 
torney is  insufficient.  Ward  v. 
Ward,  20  C.  C.  130. 

It  is  addressed  to  the  clerk,  who 
decides  whether  the  writ  shall  is- 
sue. Cook  v.  Olds,  etc.,  19  C.  C. 
732.  As  to  the  nature  of  the  claim 
it  is  sufficient  to  say.  "Upon  a  book 
account  for  merchandise  sold  to  de- 
fendant,   amounting    to    $ ." 

Hoover  v.  Hosloge,  5  N.  P.  90.  As 
to  allegation  of  stockholders'  liabil- 
ity, see  Northern  v.  Maumee,  etc., 
2  N.  P.  260.  It  was  held  when  the 
date  of  the  note  in  the  petition  and 
the  date  of  the  note  in  the  affidavit 
were  different,  that  the  affidavit  was 
good.  Orlop  v.  Schuler,  4  C.  C. 
N".  S.  611.  See  also  on  this  subject 
Constable   v.    White,    1    Handy,   45. 


As  to  required  allegations  as  to  just- 
ness cf  claim,  see  Endel  v.  Leibrock, 
33  O.  S.  254.  As  to  the  allegations 
as  to  the  amount  due,  see  Sleet  v. 
Williams,  21  O.  S.  82;  Mansfield, 
etc.,  v.  Post,  22  C.  C.  732;  Win- 
chester v.  Pierson,  3  W.  L.  J.  131; 
Mansfield  v.  Post,  22  C.  C.  644; 
Gen'l  Code,   S11S69    ( R.  S.   §5565). 

•43  Emmet  v.  Yeigh,  12  O.  S.  335; 
Harrison  v.  King,  9  O.  S.  388 ;  Shaw- 
nee v.  Miller,  1  C.  C.  N.  S.  569; 
Bullock  v.  Mitchell,  16  W.  L.  B. 
354;  Gans  v.  Thompson,  11  O.  S. 
579. 

44  Creaser  v.  Young,  31  O.  S.  57. 
As  to  the  allegations  of  assault  and 
battery  in  the  attachment  affidavit, 
see  Ibid;  Kirk  v.  Whittaker,  22  O. 
S.  115;  Sturtevant  v.  Tuttle,  22  0. 
S.  Ill;  Smith  v.  Pabst,  1  Iddings, 
T.  R.  D.  10S.  Statement  of  mere 
belief  insufficient.  Garner  v.  White, 
23  O.  S.  192;  McLane  v.  Colburn.  2 
X.  P.  X.  S.  257;  Dunlevy  v. 
Schwartz,  17  O.  S.  640.  Improper 
to  state  grounds  alternatively. 
Rogers  v.  Ellis,  1  Dim.  1:  Schatz- 
man  v.  Stump,  7  W.  L.  B.  334; 
Brownell  v.  Colbath,  13  W.  L.  B.  35. 

« Gen'l  Code,  §11819  (R.  S. 
§5521). 


§  161  MEKWINE   ON    REAL    ACTIONS.  152 

the  recovery  of  money,  though  not  for  a  demand  arising  upon  a 
contract,  judgment  or  decree.40 

The  writ  of  attachment  may  issue,  in  implied  contracts,  where 
there  are  tortious  elements  that  have  been  waived;47  in  an 
equitable  action  brought  to  recover  money;48  in  an  action  for 
specific  relief  and  also  for  the  recovery  of  money; 49  in  an  action 
by  one  partner  against  another  for  a  general  balance  on  settle- 
ment ; no  and  in  an  action  upon  a  judgment  of  a  justice  of  the 
peace,  the  ground  of  the  attachment  being  that  the  defendant 
has  made  a  fraudulent  disposition  of  his  property.51 

There  is  a  further  provision  of  the  attachment  statute  re- 
quiring that  an  attachment  shall  not  be  granted  on  the  ground 
that  the  defendant  is  a  foreign  corporation  or  a  non-resident  of 
the  State,  for  any  claim  other  than  debt  or  a  demand  arising 
upon  a  contract,  judgment  or  decree,  or  for  causing  death  or 
a  personal  injury,  by  negligent  or  wrongful  act.52 

Sec.  161.     Attachment  orders  may  issue  to  different  counties. 

Orders  of  attachment  may  be  issued  to  the  sheriffs  of  different 
counties;  and  several  of  them  may,  at  the  option  of  the  plaintiff, 
be  issued  at  the  same  time,  or  in  succession;  but  such  only  as 
have  been  executed  are  to  be  taxed  in  the  costs,  unless  otherwise 
directed  by  the  court.53 

Under  this  provision  of  the  attachment  statute,  an  action  for 
damages  for  a  breach  of  promise  to  marry,  the  writ  will  issue 
against  a  non-resident  defendant  ;r'4  so  in  an  action  against 
a  railroad  company  for  an  injury  to  one  of  its  passengers  on 
account  of  its  negligence;55  so  in  an  action  for  damages  for  a 
breach  of  contract  to  sell  real  estate  to  plaintiff;"'"  so  in  an 
action  for  a  commission  for  selling  real  estate,  the  commission 
being  all  that  the  agent  should  have  above  a  certain  stipulated 

"Ward  v.  Howard,  12  0.  S.  158;  §5525).      See   No.   51    for   form   for 

Hoover  v.  Gibson,  24  0.  S.  389.  order  of  attachment. 

"7  Dean   v.   Yates,  22   0.  S.  388.  m  Albert   v.   Armstrong,    14   C.   C. 

"Gofle  v.   Howard,   12  0.  S.   165.  290;    but   see   Conley   v.    Creeghton, 

*«IMd.  2  W.   L.  I'..  4;  Caldwell  v.  Spellman, 

bo  Ibid.  7    W.    1..  J.   7:    Dabney   v.    Pappen- 

bi  Brooke    v.    Todd,    1    Hand.    169.  hemer.  20  C.  C.  707. 

BsGenl      Code,     §1181!)      (R.     S.  55  Railroad    v.    Peoples,    31    0.    S. 

§5521).  537. 

osGen'i      Code      §11820      (R.     S.  »« Landes  v.  Case,  5  N.  P.  360. 


153  REAL    ESTATE    UNDEK    ATTACHMENT.  §§  162-165 

amount,57  and  so  in  an  action,  tke  surety  may,  on  behalf  of  a 
creditor,  sustain  the  attachment  against  the  principal  debtor. 

Sec.  162.     Bond  required  before  writ  is  issued. 

When  the  ground  of  the  attachment  is  that  the  defendant  is 
a  foreign  corporation,  or  a  non-resident  of  this  State,  the  order 
of  attachment  may  be  issued  without  an  undertaking;  but  in  all 
other  cases  the  order  cannot  be  issued  by  the  clerk  until  there  is 
executed  in  his  office,  by  sufficient  surety  of  the  plaintiff,  to  be 
approved  by  the  clerk,  an  undertaking,  in  a  sum  equal  to  double 
the  amount  of  the  plaintiff's  claim,  to  the  effect  that  the  plaintiff 
will  pay  the  defendant  all  damages  which  he  may  sustain  by 
reason  of  the  attachment  if  the  order  prove  to  have  been  wrong- 
fully obtained.58 

Sec.  163.     The  order  of  attachment,  its  command  and  to  whom 
directed. 

The  order  of  attachment  must  be  directed  and  delivered  to  the 
sheriff,  and  it  must  require  him  to  attach  the  lands,  teneme  its, 
etc.,  and  effects  of  the  defendant,  in  his  county,  not  exempt  by 
law  from  being  applied  to  the  payment  of  plaintiff's  claim  or  so 
much  thereof  as  will  satisfy  the  plaintiff's  claim,  to  be  stated  in 
the  order  as  in  the  affidavit,  and  the  probable  costs  of  the  action, 
not  exceeding  fifty  dollars.59 

Sec.  164.     When  attachment  orders  are  returnable. 

The  return  day  of  the  order  of  attachment,  when  the  order  is 
issued  at  the  commencement  of  the  action,  is  the  same  as  of  that 
of  the  summons ;  when  issued  afterwards  it  will  be  twenty  days 
after  it  is  issued."0 

Sec.  165.     Order  in  which  several  attachment  orders  executed. 

When  there  are  several  orders  of  attachment  against  the  same 
defendant  they  must  be  executed  in  the  order  in  which  they 
were  received  by  the  sheriff.61 

sJAmmen   v.  Morris,   2   W.   L.  B.           ™  On'l     Code,     §11824      (R.     S. 

94.  §5526). 

5*Gen'l     Code,     §11821      (R.  S.           « Gen'l     Code,     §11825      (R.     S. 

§  5523.)      See  No.  50  for  form.  §  5527). 

69  Gen'l     Code     §11822      (R.  S. 
§5524). 


§§  166-168  MERWINE    ON   REAL    ACTIONS.  154 

Sec.  166.     The  manner  in  which  the  order  of  attachment  is 
executed. 

The  sheriff  is  required  to  execute  the  order  of  attachment 
without  delay;  he  is  required  to  go  to  the  place  where  the  de- 
fendant's property  is  and  there,  in  the  presence  of  two  free- 
holders of  the  county,  declare,  that  by  virtue  of  the  order,  he 
attaches  the  property  at  the  suit  of  the  plaintiff;  the  officer,  with 
the  freeholders,  who  must  be  first  sworn  by  the  officer,  are 
required  to  make  a  true  inventory  and  appraisement  of  all  the 
property  attached,  which  must  be  signed  by  the  officer  and 
freeholders  and  returned  with  the  order;  when  the  property 
attached  is  real  property,  the  officer  must  leave  with  the  occupant 
thereof,  or  if  there  fs  no  occupant,  in  a  conspicuous  place  thereon, 
a  copy  of  the  order.62 

Sec.  167.     When  the  property  attached  may  be  delivered  to 
the  person  with  whom  found. 

It  is  the  duty  of  the  sheriff  to  deliver  the  property  attached 
to  the  person  in  whose  possesion  it  was  found,  upon  the  execu- 
tion by  such  person,  in  the  presence  of  the  sheriff,  of  an  under- 
taking to  the  plaintiff  with  sufficient  surety,  resident  in  the 
county,  to  the  effect  that  the  parties  to  the  same  are  bound  in 
double  the  appraised  value  of  the  property,  that  the  property, 
or  its  appraised  value  in  money,  will  be  forthcoming  to  answer 
the  judgment  of  the  court  in  the  action ;  but  if  it  appear  to  the 
court  that  any  part  of  said  property  has  been  lost  or  destroyed 
by  unavoidable  accident  the  value  thereof  shall  be  remitted  to 
the  person  so  bound.03 

Sec.  168.     Several   attachments   may   be   made   by   the   same 
officer. 

Different  attachments  of  the  same  property  may  be  made  by 
thf  same  officer;  and  the  one  inventory  and  appraisement  will 
be  sufficient,  and  it  will  not  be  necessary  to  return  the  same 
with  more  than  one  order.64 

szGen'l     Code,     §  11826     (R.     S.  64Gen'l     Code,     §11834     (R.     S. 

§5528).  §5535). 

esGen'l     Code,     §11827      ill.     S. 
§  552!) ) . 


155  REAL    ESTATE    UNDER    ATTACHMENT.  §§  169-172 

Sec.  169.     How  subsequent  attachments  may  be  made. 

When  the  property  is  under  attachment,  attachments  on  the 
same  under  subsequent  orders  are  required  to  be  made  as  follows: 
If  it  is  real  property,  it  must  be  attached  in  the  manner  pre- 
scribed for  executing  attachments.65 

Sec.  170.  Officer's  return  of  the  writ  and  the  time  when  the 
property  is  bound. 
The  officer  must  return  upon  every  order  of  attachment  what 
he  has  done  under  it,  and  the  return  must  show  the  property 
attached  and  the  time  it  was  attached;  and  the  officer  must 
return  with  the  order  all  undertaking  given  under  it;  and  the 
order  of  attachment  will  bind  the  property  attached  from  the 
time  of  service.66 

Sec.  171.  How  an  attachment  may  be  discharged  and  bond 
for  same — Bond  where  action  is  brought  for  causing  death. 
If  the  defendant,  or  other  person  on  his  behalf,  at  any  time 
before  judgment,  cause  an  undertaking  to  be  executed  to  the 
plaintiff,  by  sufficient  surety  resident  in  the  county,  to  be 
approved  by  the  court,  in  double  the  amount  of  the  plaintiff's 
claim  as  stated  in  his  affidavit,  to  the  effect  that  the  defendant 
shall  perform  the  judgment  of  the  court,  the  attachment  shall  be 
discharged,  and  restitution  made  of  any  property  taken  under  it, 
or  the  proceeds  thereof;  and  such  undertaking  shall  also  dis- 
charge the  liability  of  a  garnishee  in  the  action,  for  any  property 
of  the  defendant  in  his  hands;  provided  that,  when  plaintiff's 
claim  is  for  causing  death  or  a  personal  injury  by  a  negligent 
or  wrongful  act,  the  undertaking  required  shall  be  in  such 
amount  as  shall  be  fixed  by  the  court  where  the  action  is  pend- 
ing, or  a  judge  thereof,  if  application  is  made  in  vacation.67 

Sec.  172.     An  undertaking  may  be  executed  in  vacation. 

The  undertaking  mentioned  in  the  preceding  paragraph  may, 
in  vacation,  be  executed  in  the  presence  of  the  officer  having  the 
order  of  attachment  in  his  hands,  or,  after  the  return  of  the 
order,  before  the  clerk,  with  the  same  effect  as  if  executed  in 

esGen'l  Code,  §11835  (R.  S.  (R.  S.  §  5537  and  §  5538.)  See  No. 
§5536).  52  for  form  for  this  writ. 

eeGen'l     Code,     §11836,     §   11837  <*  Gen'l     Code,     §11844      (R.     S. 

§5545). 


§§  173-176  MERWINE    ON    REAL    ACTIONS.  156 

court ;  the  sureties,  in  either  ease,  10  oe  approved  by  the  officer 
before  whom  the  undertaking  is  executed.68 

Sec.  173.     Effect  of  judgment  for  defendant  in  attachment. 

If  judgment  in  the  action  be  rendered  for  defendant,  the 
attachment  will  be  discharged  and  the  property  attached,  or  its 
proceeds,  will  be  returned  to  him.69 

Sec.  174.     Proceedings  after  judgment  for  plaintiff. 

If  judgment  be  rendered  for  the  plaintiff  it  will  be  satisfied 
as  follows:  So  much  of  the  property  remaining  in  the  hands  of 
the  officer  after  applying  the  money  arising  from  the  sale  of 
perishable  property,  and  so  much  of  the  personal  property,  and 
lands  and  tenements,  if  any,  whether  held  by  legal  or  equitable 
title,  as  may  be  necessary  to  satisfy  the  judgment,  must  be  sold 
by  order  of  the  court,  under  the  same  restrictions  and  regula- 
tions as  if  the  same  had  been  levied  on  by  execution,  and  the 
money  arising  therefrom,  with  the  amount  that  may  be  recovered 
from  the  garnishee,  shall  be  applied  to  satisfy  the  judgment  and 
costs;  if  there  be  not  enough  to  satisfy  the  same,  the  judgment 
will  stand,  and  execution  may  issue  thereon  for  the  residue,  in 
all  respects  as  in  other  cases ;  and  any  surplus  of  the  attached 
property,  or  its  proceeds,  must  be  returned  to  the  defendant.70 

Sec.  175.     When  questions  of  priority  of  several  attachments 
may  be  referred. 

When  several  attachments  are  executed  on  the  same  property, 
or  the  same  person  is  made  a  garnishee  by  several  parties,  the 
court,  on  motion  of  any  of  the  plaintiffs,  may  order  a  reference, 
to  ascertain  and  report  the  amounts  and  priority  of  the  several 
attachments.71 

Sec.  176.     Death  of  defendant  does  not  end  attachment  pro- 
ceedings. 

From  the  time  of  the  issue  of  the  order  of  the  attachment, 
the  raint   will  be  deemed   to  have  acquired  jurisdiction  and  to 

esGen'l     Code,     §11840      (R.     R.  ?o  Gen'l      Code.     ^  1 1 855      (R.     S. 

§5540).  §5555). 

6»Gen'l     Code,     8  11854      (R.     S.  "  Gen'l     Code,     §11859      (R.     S. 

§  555-*.)      See  No.  63  for  form  for  a  §  5559). 
judgment  in  the  action. 


157  REAL    ESTATE    UNDER    ATTACHMENT.  §§  177-179 

have  control  of  all  subsequent  proceedings  under  this  chapter; 
and  if,  after  the  issue  of  the  order,  the  defendant,  being  a 
person,  die,  or  being  a  corporation,  its  charter  expire  by  limita- 
tion, forfeiture  or  otherwise,  the  proceedings  must  be  carried 
on ;  but  in  all  such  cases,  other  than  where  the  defendant  was  a 
foreign  corporation,  the  legal  representatives  of  the  defendant 
must  be  made  parties  to  the  action.72 

Sec.  177.     Cases  in  which  plaintiff  may  be  required  to  give 
additional  surety. 

The  defendant  may,  at  any  time  before  judgment,  after  reason- 
able notice  to  the  plaintiff,  move  the  court  for  additional  surety 
on  the  part  of  the  plaintiff,  and  if,  on  such  motion,  the  court  is 
satisfied  that  the  surety  in  the  plaintiff's  undertaking  has  re- 
moved from  the  State,  or  is  not  sufficient  for  the  amount  of  the 
undertaking,  it  may  vacate  the  order  of  attachment  and  direct 
restitution  of  any  property  taken  under  it,  unless,  in  a  reason- 
able time,  to  be  fixed  by  the  court,  sufficient  surety  be  given  by 
the  plaintiff.73 

Sec.  178.     Attachment  discharged  by  motion  for  that  purpose 
and  evidence  in  such  cases. 

The  defendant  may,  at  any  time  before  judgment,  upon  reason- 
able notice  to  the  plaintiff,  move  to  discharge  the  attachment 
as  to  the  whole  or  any  part  of  the  property  attached ;  the  motion 
may  be  heard  and  decided  by  the  court  at  any  term  or  regular 
session  thereof,  or  it  may  be  made,  heard  and  decided  by  any 
judge  thereof  in  vacation ;  and  when  the  motion  is  made  upon 
affidavits  on  the  part  of  the  defendant,  or  papers  and  evidence 
in  the  case,  but  not  otherwise,  the  plaintiff  may  oppose  the  same 
by  affidavits  or  other  evidence,  in  addition  to  the  evidence  on 
which  the  order  of  attachment  was  made.74 

Sec.  179.     Proceedings  in  error  to  reverse,  vacate  or  modify 
order  discharging  attachment. 
A  party  to  a  suit  affected  by  an  order  discharging  or  refusing 
to  discharge  an  order  of  attachment,  may  file  a  petition  in  error 

"2Gen'l     Code,      §11860      (R.      S.  ™  Gen'l     Code,     §11862,     §11863 

§5560).  (R.  S.  §5562  and   §5563). 

73Cen'l     Code,     §11861      (R.     S. 
§5561). 


§§  180,  181  MERWINE    ON    REAL    ACTIONS.  158 

# 

to  reverse,  vacate  or  modify  the  same,  as  in  other  cases;  and 
the  original  action  may  proceed  to  trial  and  judgment  in  every 
respect,  as  though  no  petition  in  error  had  been  prosecuted.75 

Sec.  180.     Error  proceedings  to  reverse  order  discharging  at- 
tachment— Bond  in  such  cases. 

When  an  order  discharging  an  order  of  attachment  is  made, 
and  the  party  affected  thereby  excepts  thereto,  it  is  the  duty  of 
the  court  or  judge  to  fix  the  number  of  days,  not  to  exceed 
thirty,  in  which  such  party  may  file  his  petition  in  error,  and 
during  which  it  must  be  filed,  and  the  attached  property  held  by 
the  sheriff  or  other  officer,  the  party  who  files  the  petition  in 
error  is  required  to  give  an  undertaking  to  the  adverse  party, 
with  surety  to  be  approved  by  the  clerk  of  the  circuit  court,  in 
double  the  amount  of  the  appraised  value  of  the  property 
attached,  conditioned  to  pay  such  adverse  party  all  the  damages 
sustained  by  him  in  consequence  of  the  filing  of  the  same,  in 
the  event  of  the  discharge  of  the  order  of  attachment  by  the 
court  in  which  the  petition  in  error  is  filed,  because  the  same 
was  wrongfully  obtained;  and  wdien  such  petition  in  error  is 
filed,  and  an  undertaking  given,  the  sheriff,  or  other  officer, 
shall  continue  to  hold  the  property  attached  subject  to  the 
further  order  of  the  court,76 

Sec.  181.     When  personal  representatives  may  file  such  peti- 
tion in  error. 

If  a,  party  who  excepts  to  an  order  discharging  or  refusing  to 
discharge  an  order  of  attachment,  die  within  the  time  limited 
for  filing  his  petition  in  error,  the  administrator  or  executor  of 
such  deceased  party  may,  at  any  time  within  thirty  days  after 
bis  appointment  and  qualification,  file  his  petition  in  error  and 
thereby  become  a  party  to  the  action,  and  shall  not  be  required 
to  give  the  undertaking  required  by  the  preceding  paragraph; 
but  i  o  such  petition  in  error  can  be  filed  by  an  executor  or 
administrator  after  one  year  from  the  time  such  order  is  made.77 

"OnM     Code,     §11864      <K.     S.  « Gen']     Code,     §11867      (R.     S. 

§5563i).  §  5563c). 

76  Gen'l     Code,     §11805     (R.     S. 
§  5563b ) 


159  REAL    ESTATE    UNDER    ATTACHMENT.  §§  182-185 

Sec.  182.     An  attachment  may  be  had  before  the  debt  is  due — 
Grounds  for  such  attachment. 
A  creditor  may  bring  an  action  on  his  claim  before  it  is  due, 
and  have  an  attachment  against  the  property  of  the  debtor : 

(a)  When  a  debtor  has  sold,  conveyed  or  otherwise  disposed 
of  his  property,  with  the  fraudulent  intent  to  cheat  or  defraud 
his  creditors,  or  to  hinder  or  delay  them  in  the  collection  of  their 
debts ;  or 

(b)  Is  about  to  make  such  sale,  conveyance  or  disposition  of 
his  property,  with  such  fraudulent  intent ;  or 

(c)  Is  about  to  remove  his  property,  or  a  material  part 
thereof,  with  the  intent  or  to  the  effect  of  cheating,  or  defraud- 
ing his  creditors,  or  of  hindering  or  delaying  them  in  the  col- 
lection of  their  debts.78 

Sec.  183.  Who  may  grant  the  writ  and  the  affidavit  therefor. 
The  attachment  authorized  by  the  last  section  may  be  granted 
by  the  court  in  which  the  action  is  brought,  or  by  a  judge 
•  thereof;  but  before  such  action  can  be  brought  or  such  attach- 
ment granted,  the  plaintiff,  or  his  agent  or  attorney,  must  make 
an  oath,  in  writing,  showing  the  nature  and  the  amount  of  tin' 
plaintiff's  claim,  that  it  is  just,  when  it  will  become  due,  and 
the  existence  of  any  one  of  the  grounds  for  attachment, 
enumerated  in  the  preceding  paragraph. 


70 


Sec.  184.     Action  to  be  dismissed  if  the  writ  is  refused. 

If  the  court  or  judge  refuse  to  grant  an  order  of  attachment, 
the  action  must  be  dismissed,  but  without  prejudice  to  a  future 
action;  and  in  all  such  actions  application  for  an  attachment 
must  be  made.80 

Sec.  185.     Order    must    specify    amount    for    which    writ    is 
allowed. 

And  the  order  of  the  court  or  judge  granting:  the  attachment 
must  specify  the  amount  for  which  it  is  allowed,  not  exceeding 
a  sum  sufficient  to  satisfy  the  plaintiff's  claim  and  the  probable 
costs  of  the  action.81 

"Oen'l  Code,     §11868      (R.     S.  so  Oen'l     Code,     §11870      (R.     S. 

§5564).  §5566). 

™Gen'l  Code,     §11869      (R.     S.  81  Gen'l     Code,     §11871      >R.     S. 

§5565).  §5567). 


§§  186-189  MERWINE    ON    REAL    ACTIONS.  160 

Sec.  186.     Bond  required  in  such  cases. 

The  order  of  attachment,  as  granted  by  the  court  or  judge, 
cannot  be  issued  by  the  clerk  until  there  is  executed  in  his  office 
such  undertaking  on  the  part  of  the  plaintiff  as  is  required  by- 
Section  162  of  this  chapter.82 

Sec.  187.     Such  actions  to  be  continued  until  the  claim  is  due. 
The  plaintiff  in  such  action  will  not  be  given  a  judgment  on 
his  claim  before  it  becomes  due;  and  the  proceedings  on  attach- 
ment may  be  conducted  without  delay.83 

Sec.  188.     How  far   other   provisions   of  attachment  law   ap- 
plicable. 
The    proceedings    authorized    by    the   law   of    attachment    for 
claims  after  due,  shall  govern  attachments  on  claims  not  yet  due, 
so  far  as  the  same  are  applicable.8 


S4 


Sec.  189.  How  to  proceed  before  a  justice  of  the  peace  when 
defendant  has  no  personal  property  but  owns  real  estate. 
Tf  in  any  case  where  an  order  of  attachment  has  been  issued 
by  a  justice  of  the  peace,  it  appears  from  the  return  of  the 
officer  that  the  defendant  has  no  personal  property,  but  owns 
real  estate,  in  the  county,  then  the  justice  is  required,  at  the 
request  of  the  plaintiff,  to  forthwith  certify  his  proceedings  to 
the  court  of  common  pleas  of  the  proper  county,  and  thereupon 
the  clerk  of  that  court  will  docket  the  cause  and  the  action  pro- 
ceed as  though  it  had  originated  there.85 

82Geh'l  Code,     §11872      (R.     S.  "  Gen'l     Code,     §11874      (R.     S. 

§556S).  §5570). 

ssGen'l  Code,     §11873      (R.     S.  »5  Gen'l     Code,     §§10288,     10289 

§55oU).  (R.  S-  §bol4). 


FORMS. 


PROCEDURE   BY   WHICH   REAL   ESTATE   IS   SOLD 
UNDER  ATTACHMENT. 


FORM. 
48. 
49. 
50. 


51. 


52. 


53. 


54. 


55. 


56. 


o< 


58. 


59. 


The   petition   in   such   cases. 

The   affidavit  for   attachment. 

The  bond  required  where  de- 
fendant is  not  a  foreign  cor- 
poration or  a  non-resident. 

The  order  of  attachment  is- 
sued by  the  clerk  to  the 
sheriff. 

The  sheriff's  return  of  the  or- 
der of  attachment  and  the 
appraisement    thereunder. 

Affidavit  for  service  by  publi- 
cation upon  non-resident  de- 
fendants in  attachment  of 
real   estate. 

Proof  of  publication  of  notice 
for  non-resident  defendant 
and  the  legal  notice. 

Finding  and  approval  of  the 
court  as  to  the  correctness 
of  the  service  by  publica- 
tion. 

Judgment  of  the  court  and 
order  of  sale  of  attached 
property  as  upon  execution. 

-Motion  of  defendant  asking 
to  set  aside  judgment  and 
order    of   sale. 

Order  of  court  sustaining  mo- 
tion and  granting  defendant 
leave  to  answer. 

Answer    of    defendant    to    the 
petition   of   plaintiff    in    at- 
tachment. 
161 


FOEM 
60. 

61. 


62. 


63. 


64. 


65. 


66. 


67. 


68. 


69. 


Reply   of   plaintiff   to   answer 

of    defendant. 
Verdict    of    jury    on    trial    of 
the     issues     in     attachment 
proceedings. 

Motion  of  defendant  to  vacate 
and  set  aside  verdict  of 
jur\r  and  for  new  trial  in 
attachment. 

Judgments  and  oraer  ~f  the 
court  overruling  motion  for 
new  trial  and  order  of  sale. 

Order  of  sale  in  attachment 
proceedings  issued  by  the 
clerk  to  the  sheriff. 

Sheriff's  return  of  his  pro- 
ceedings under  the  order  of 
sale. 

Proof  of  publication  of  sher- 
iff's sale  and  legal  notice  of 
such   sale. 

Appraisement  of  real  estate 
and  oatli  of  appraisers. 

Entry  confirming  sale,  order- 
ing distribution  and  the  exe- 
cution and  delivery  of  a 
deed  to  the  purchaser  at 
sheriff's  sale  of  attached 
property. 

Sheriff's  deed  for  real  estate 
sold  by  him  under  attach- 
ment proceedings. 


MEKWINE    ON    REAL    ACTIONS.  162 


No.  48.    Petition. 

Court  of  Common  Pleas, County,  Ohio 

D.  C,  Jr.,  Plaintiff, 

vs.  Case  Xo. 

G.  S.,  Defendant. 

1.     First  Cause  of  Action: 


The  plaintiff  says  that  this,  his  first  cause  of  action,  is  founded  on  a 
promissory  note  of  which  the  following  is  a  copy,  with  all  credits  and  in- 
dorsements   thereon : 

$ .  ,  18 . 


months   after   date,   for   value   received,   1   promise   to  pay  to 

B.   A.   S.,   or  order,  dollars,  with   interest  at  per  cent,  per 

annum,  payable  yearly.  G.  S. 

The  following  are  all  the  credits  and  indorsements  thereon: 


■ ,  19 .    Paid  on  the  within  note  one  year's  interest  ($ ). 

,  19 .     Pay  to  the  order  of  D.  C,  Jr.,  without  recourse  on  me. 

B.  A.  K. 

On  ,  19 ,  said  B.  A.  K.,  whose  maiden  name  was  B.  A.  S., 

demanded  of  said  G.  S.  the  payment  of  the  amount  due  on  said  note. 

On  the day  of ,  19 ,  the  above  note  was  duly  assigned 

and  transferred  to  said  plaintiff'  for  a  valuable  consideration. 

There  is  due  from  said  defendant  to  plaintiff  on  said  note  the  sum  of 

($ )   dollars,  which  he  claims,  with  interest  on  $ 

from  the  day  of  ,  19 ,  and  for  which  he  asks  judgment. 

2.     Second  Cause  of  Action: 

The  plaintiff"  says  this,  his  second  cause  of  action,  is  founded  on  a 
promissory  note  of  which  the  following  is  a  copy,  with  all  credits  and  in- 
dorsements thereon: 

$ .  -,  18 . 


: year  after  date,  for  value  received,   T  promise  to  pay  B.  A. 

S.  K.,  or  order,  dollars,   with    interest    at  the   rate  of  per 

cent,  per  annum.  G.  S. 

Credits:      ,   19 .     Paid  on  within   note,  one  year's  interest 

($ ). 

Indorsement:      Pay  to  the  order  of  D.  C,  Jr.,  without  recourse  on  me. 

B.  A.  K. 

The  above  note  was  duly  assigned  and  transferred  to  said  plaintiff  for 
a  vahiable  consideration. 

There    is   due   from   said    defendant   to   plaintiff  on   said    note  

($ )    dollars,    which    he   claims,    with    interest   on   $ from 

the  day  of  ,  19 ,  and  for  which  he  asks  judgment. 


163  FORMS. 

3.     Third  Cause  of  Action: 

The  plaintiff  says  this,  his  third  cause  of  action,  is  founded  on  a  prom- 
issory note  of  which  the  following  is  a  copy,  with  all  credits  and  indorse- 
ments thereon : 

$ .  ,   18 . 


year  after  date,  for  value  received,   I  promise  to  pay   B.   A. 

S.  K.,  or  order,  dollars,  with  interest  at  the  rate  of  per  cent. 

per  annum.  G.  8. 

The  following  are  all  the  credits  and  indorsements  thereon: 
,  10 .    Paid  on  the  within  note,  one  year's  interest  ($ ). 


,  19— — .     Pay  to  the  order  of  D.  ('.,  Jr.,  without  recourse  on  me. 

B.  A.  K. 

The  above  note  was  duly  assigned  and  transferred  to  said  plaintiff  for 
a  valuable  consideration. 

There  is  due  from  said  defendant  to  plaintiff  on  said  note dol- 
lars, which   he  claims,   with  interest  on  $ thereof  from  the  

day  of ,  19 ,  and  for  which  he  asks  judgment. 

4.     Fourth  Cause  of  Action: 

The  plaintiff  says  this,  his  fourth  cause  of  action,  is  founded  on  a  prom- 
issory note  of  which  the  following  is  a  copy,  with  all  credits  and  indorse- 
ments thereon : 

$ .  .   18 . 


year  after  date,  for  value  received,  I  promise  to  pay  B.  A.  S., 

or  order,  dollars,  with  interest  at  the  rate  of  per  cent,  per 

annum,  payable  yearly.  G.  S. 

The  following  are  all  the  credits  and  indorsements  thereon: 

,     19 .       Paid    on    the     within     note,    one    year's     interest 

($ ).     Pay  to  the  order  of  D.  C,  Jr.,  without  recourse  on  me. 

B.  A.  K. 

The  said  B.  A.  K.,  whose  maiden  name  was  B.  A.  S.,  duly  assigned  and 
transferred  said  note  to  said  plaintiff  for  a  valuable  consideration. 

There   is  due   from   said    defendant   to   plaintiff  on   said   note   

dollars,  which  he  claims,  with  interest  on  $ from  the day  of 

,  19 ,  and  for  which  he  asks  judgment. 

5.     Fifth  Cause  of  Action: 

The  plaintiff  says  that  this,  his  fifth  cause  of  action,  is  founded  on  a 
promissory  note  of  which  the  following  is  a  copy,  with  all  credits  and  in- 
dorsements thereon: 

$ .  .   18 . 


year  after  date,  for  value  received,  T  promise  to  pay  B.  A.  S., 

or  order,  dollars,  with  interest  at  the  rate  of  per  cent. 

per  annum.  G.  S. 


MERWINE    ON   REAL    ACTIONS.  164 

The  following  are  all  the  credits  and  indorsements  thereon: 

1     19 .       Paid    on    the    within    note,    one    year's     interest 

($ ).     Pay  to  the  order  of  D.  C,  Jr.,  without  recourse  on  me. 

B.  A.  K. 

The  above  note  was  duly  assigned  and  transferred  to  said  plaintiff  for 
a  valuable  consideration. 

There  is  due  from  said  defendant  to  plaintiff  on  said  note  — dol- 
lars,  which   he   claims,   with   interest   on  $ from   the   day   of 

,   19 ,  and  for  which  he  asks  judgment. 

G.     Sixth  Cause  of  Action  : 

The  plaintiff  says  this,  his  sixth  cause  of  action,  is  founded  on  a  prom- 
issory note  of  which  the  following  is  a  copy,  with  all  credits  and  indorse- 
ments thereon: 

$ — .  ,   18 . 


year   after  date,  for  value  received,    I   promise  to  pay   B.  A. 

S.   K-,  or  order,  dollars,   with   interest  at   the   rate  of  per 

cent,  per  annum.  G.  S. 

,     19 .      Paid    on    the    within    note,    one    year's    interest 

($ ).     Pay  to  the  order  of  D.  C,  Jr.,  without  recourse  on  me. 

B.  A.  K. 

The  above  note  was  duly  assigned  and  transferred  to  said  plaintiff  for 
a  valuable  consideration. 

There  is  due  from  said  defendant  to  plaintiff  on  said  note dol- 
lars, which  he  claims,  with   interest   on  $ from   the  day  of 

,  19 ,  and  for  which  he  asks  judgment. 

The   plaintiff  asks  judgment   against  said   defendant  in  the   total   sum 

of  ($ )    dollars,  with  interest  on  $ from  . 

19 ;  on  $ from  ,   19 ;  on  $ from  , 

19 ;  on  $ from  ,  19 ;  on  $ from  , 

19 ,  and  costs  of  this  suit.  D.  C,  Jr. 

Petition  should  be  verified  as  in  other  cases. 

No.  49.     The  affidavit  for  attachment. 

D.  C,  Jr.,  Plaintiff, 

vs.  Case  No.  . 

G.  S.,  Defendant. 

State  of  Ohio,  County,  ss. : 

D.  ('.,  Jr.,  the  plaintiff  herein,  makes  oath  that  he  is  commencing  here- 
with a  civil  action  in  this  court,  against  the  defendant,  G.  S. ;  that  liis  said 
action  is  for  the  recovery  of  money  upon  a  debt  arising  upon  contracts, 
to-wit:  six  promissory  notes  made  by  said  defendant,  payable  to  B.  A.  K., 
and  by   her  assigned  and    transferred  to   plaintiff,  the   first  of  said   notes 

oeing  for  $ and   interest,   the  second   for  $ ■ and   interest, 

the  third   for  $ and   interest,  the  fourth  for  $ and   inter- 
est, the  fifth  for  $ and  interest,  and  the  sixth  for  $ and 

interest. 


165  FORMS. 

Said  plaintiff"  also  makes  oath  that  said  claim  is  just;  that  the  amount 

which  plaintiff  believes  he  ought  to  recover  is  the  sum  of  dollars, 

with    interest   on   $ from   ,    19 ;    on   $ from 

,    19 ;    on   $ from   ,    19 ;    on   $ 

from   ,    19 ,   and   on   $ from   ,    19 ;    that 

said  defendant,  G.  S.,  is  a  non-resident  of  this,  the  State  of  Ohio. 

The  above  named  affiant,  D.  C,  Jr.,  swears  that  the  facts  stated  in 
the  foregoing  affidavit  are  true.  D.  C,  Jr. 

Sworn  to  before  me,  and  subscribed  in  my  presence,  this  day  of 

,  19 .  F.  B.  M., 

Notary  Public,  County,  Ohio. 

No.  50.     The  bond  required  when  the  defendant  is  not  a  foreign 
corporation  or  a  non-resident. 

D.  C,  Jr.,  Plaintiff, 

vs.  Case  Ni. . 

G.  S.,  Defendant. 

We,  S.  C,  Jr.,  as  principal,  and  and  ,  as  his  sure- 
ties, do  hereby  undertake  and  bind  ourselves,  jointly  and  severally,  unto 

G.  S.  in  the  sum  of  $ ,  to  the  effect  that  the  said  plaintiff',  S.  C., 

Jr.,  shall  pay  the  defendant,  G.  S.,  all  damages  which  he  may  sustain  by 
reason  of  the  attachment  in  this  case,  if  the  order  prove  to  have  been 
wrongfully  obtained. 

In   Witness   Whereof,  We  have  hereunto   affixed  our  hands  on   this 

day  of ,  19 . , 

Principal, 


Surety, 


Surety. 

The  above  bond  and  the  sureties  thereon  approved  and  accepted  by  me 

on  this day  of ,  19 . , 

Clerk. 

No.  51.     The  order  of  attachment  issued  by  the  clerk  to  the 
sheriff. 

D.  C,  Jr.,  Plaintiff, 

vs.  Case  No. . 

G.  S.,  Defendant. 

The  State  of  Ohio.  ■ County,  ss.: 

To  the  Sheriff  of County,  Ohio: 

You  are  commanded  to  attach  and  safely  keep  the  lands,  tenements, 
goods,  chattels,  stocks  or  interest  va  stocks,  rights,  credits,  moneys  and 
effects  of  the  defendant,  G.  S.,  in  your  county,  not  exempt  by  law  from 
being  applied  to  the  payment  of  the  claims  of  the  plaintiff,  D.  C,  Jr.,  or 
so  much  thereof  as  will  satisfy  his  claim  for  $ ,  with  interest  on 


MERWINE    ON    REAL    ACTIONS.  166 


from    ,     19 ;     on    $ from    ,     19- 


on  $ from ,  19 ;  on  $ from  ,  19 , 

and  on  $ from  ,    19 ,  and  also  for  dollars, 

the  probable  cost  of  tliis  action. 

You  will  make  due  return  of  this  order  on  the day  of , 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and  . 

Witness  my  hand  and  the  seal  of  said  court  this  day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and  . 

J.  M.   W.,   Cleric, 
By  J.  R.  B.,  Deputy. 

No.  52.     The  sheriff's  return  of  the  order  of  attachment  and  the 
appraisement  thereunder. 

Office  SherifT,  County,  Ohio,  day  of  ,  in  the  year 

of  our  Lord  one  thousand  nine  hundred  and . 

Received  this  order  on  the  day  of  ,   in  the  year  of  our 

Lord  one  thousand   nine   hundred   and  ,   and,  in  obedience  to  the 

command  thereof,  I  did,  on  the  day  of  ,  in  the  year  of  our 

Lord  one  thousand  nine  hundred  and ,  in  the  presence  of  A.  P.  8. 

and  E.  C.  B.,  two  freeholders  of  said  county,  attach  the  property  de- 
scribed in  the  Schedule  marked  "A,"  hereto  attached  and  made  part  of 
this  return;  and  having  first  administered  to  said  freeholders  the  oath  re- 
quired by  law,  to  make  a  true  inventory  and  appraisement  of  said  prop- 
erty, we  proceeded  to  make  such  inventory  and  appraisement,  as  will  fully 
appear  by  reference  to  said  Schedule  "A." 

Schedule  "A." 

We,  G.  J.  K.,  Sheriff  of  County,  and  A.  P.  S.  and  E.  C.  B., 

two  freeholders  of  said  county,  do  truly  inventory  and  appraise  the  prop- 
erty attached  under  the  foregoing  order,  as  the  property  of  G.  S.,  and 
hereinafter  described  as  follows,  viz:  (Here  insert  description  of  real  es- 
tate. ) 

Given  under  our  hands  this  day  of  ,  in  the  year  of  our 

Lord  one  thousand  nine  hundred  and  . 


Sheriff. 


Appraisers. 

No.  53.     Affidavit  for  service  by  publication  upon  non-resident 
defendant  in  attachment  of  real  estate. 

D.  C,  Jr.,  Plaintiff, 

\  s.  Case  No.  . 

G.  S.,  Defendant. 

D.  C.,  dr..   the   above  named    plaintiff,   makes  solemn  oatli  that   service 
of  a  summons  cannot  be  made  upon  the  said  defendant,  G.  S.,  within  this, 


167  FORMS. 

the  State  of  Ohio;   that  his  residence  is   in   the  State  of  Virginia,  county 

of  ,  and   his  post-office  address  is  ;    that,  in  this  action, 

an  order  of  attachment  has  been  duly  issued  and  levied  upon  the  prop- 
erty of  the  defendant,  G.  S.,  which  property  is  sought  by  such  proceedings 
in  attachment  to  be  appropriated  toward  the  satisfaction  of  such  judg- 
ment as  the  plaintiff  may  obtain  against  the  said  defendant,  G.  S.,  in  this 
action.  D.  C,  Jr. 

Sworn   to  before  me  and  subscribed   in  mv   presence   this  day  of 

,  19 •  J.  M., 

llotary   Public, County,  Ohio. 

No.  54.     Proof  of  publication  of  notice  for  non-resident  defend- 
ant and  the  legal  notice. 

State  of  Ohio,  County,  ss. : 

J.  H.  B.,  foreman  of  ,  a  newspaper  published   and   printed  in 

County,  Ohio,  personally  appeared  and  made  oath  that 


the    attached    printed    advertisement    was    published    six    consecutive    weeks 

in  said  newspaper,  i.  e.,  on  ,  19 ;   and  that  said  newspaper  is 

of  general  circulation  in  said  County.  J.  H.  B. 

Subscribed  and  sworn  to  this  day  of  .  19 . 

F.  M.  S., 
Notary  Public  in  and  for  County. 

Legal  Notice. 
D.  C,  Jr.,  Plaintiff, 

vs.  Case  No.  . 

G.  S.,  Defendant. 

G.  S.,  the  above  named  defendant,  whose  residence  is  


County.    Virginia,    will   take   notice    that   on   the   day   of   , 

19 ,  D.  C,  Jr.,  the  plaintiff  in  said  court,  duly  commenced  a  civil  ac- 
tion  against  the   defendant   to   recover   against   him   the   sum   of  


dollars    ($ ).  with    interest  on  $ from  ,    19- 

on  $ from  ,  19 ;  on  $ from .  19- 

on   $ from   ,    19 ,   and   on   $ from   


19 ,  and  costs  of  suit,  upon   six  promissory  notes  made  by  said  G.   S. 

to  B.  A.  K.,  and  by  her  assigned  to  the  plaintiff,  said  notes  bearing  date 

,  19 ;  .  19 ;  .  19 ; ,  19 ; 

■   19 ,  respectively,   with   interest,   the    interest  of  each  of  said 


notes  having  been  paid  for  one  year,  and  for  the  aforesaid  sum  of  $- 


and  interest  the  plaintiff  asks  judgment  against  said  G.  S.,  as  maker  of 
said  promissory  notes.  An  order  of  attachment  in  said  action  has  been 
duly  issued  against  the  following  described  real  estate  of  said  G.  S. 
(Here  describe  real  estate  attached.) 

Said  G.  S.  is  required  to  answer  the  petition  in  said  action  on  the  

day  of  ,  19 ,  or  judgment  will  be  taken  against  him  by  de- 
fault for  said  amount,  with  interest  and  costs. 

D.  C,  Jr.,  Plaintiff. 


MERWINE    ON    REAL    ACTIONS.  168 

No.  55.     Finding  and  approval  of  the  court  as  to  correctness  of 
the  service  by  publication. 

D.  C,  Jr.,  Plaintiff, 

vs.  Case  No.  . 

G.  S.,  Defendant. 

In  this  case  the  notice  filed  herein,  requiring  said  G.  S.  to  answer  the 
petition,  is  found  by  the  court  to  have  been  duly  published  for  six  consecu- 
tive weeks,  as  required  by  law,  and  such  publication  is  hereby  approved 
by  the  court. 

No.  56.    Judgment  of  the  court  and  order  of  sale  of  attached 
property  as  upon  execution. 

D.  C,  Jr.,  Plaintiff, 

vs.  Case  No.  . 

G.  S.,  Defendant. 

This  day  this  cause  was  submitted  to  the  court  by  the  plaintiff,  and 
the  court  finds  that  the  said  defendant,  G.  S.,  has  been  duly  served  by 
publication,  and  has  failed  to  answer  or  demur  to  the  petition  herein,  and 
is  in  default,  and  the  petition  as  to  him  is  taken  as  confessed.  The  court 
further  finds  that  there  is  due  to  the  plaintiff  from  the  defendant,  on  six 

causes  of  action  set  forth  in  plaintiff's  petition,  the  total  sum  of 

($ )  dollars. 

It   is   therefore   ordered   that   said   plaintiff    recover   of   said   defendant 

out  of  the  property   attached   herein  said   sum  of  ($ ) 

dollars,  and  also  his  costs  of  suit. 

And  it  is  further  ordered  and  adjudged  by  the  court  that  so  much 
of  the  attached  property  of  the  defendant,  G.  S.,  as  may  be  necessary  to 
fully  satisfy  this  judgment,  with  the  interest  and  accruing  costs,  shall 
be  sold  under  the  same  restrictions  and  regulations  as  if  the  same  had 
been  levied  on  by  execution,  and  the  money  arising  therefrom  be  applied 
to  satisfy  this  judgment  and  such  said  costs. 

No.  57.     Motion  of  defendant  asking  to  set  aside  judgment  and 
order  of  sale. 

D.  O,  Jr.,  Plaintiff, 

vs.  Case  No.  . 

G.  S.,  Defendant. 

Now  comes  G.  S.,  defendant,  and  enters  his  appearance  herein,  and  sub- 
mits to  the  jurisdiction  of  the  court,  and  moves  the  court  to  vacate  and 
set  aside  the  judgment  heretofore  taken  herein,  and  for  leave  to  file  an- 
swer   instanter    for    the    following   reasons,    to-wil  :      That   defendant   is    a 

resident  of  ,  and  iliil  nut    have  actual  knowledge  of  the  pendency 

of  said  action  in  sufficient  time  to  employ  counsel  and  present  his  defense; 
:ind  second,  that  defendant  has  a  good  and  sufficient  defense  against  the 
various  causes  of  action  set  out  in  said  petition. 

B.  G.  and  P.  S.  W\. 
Attorneys  for  Defendant. 


169 


FORMS. 


No.  58.     Order  of  court  sustaining  motion  and  granting  defend- 
ant leave  to  answer. 

D.  C,  Jr.,  Plaint  iff, 

vs-  Case  No.  . 

G.  S.,  Defendant. 

This  cause  coming  on  to  oe  heard  upon  the  motion  of  defendant  here- 
tofore riled  herein,  praying  the  court  to  vacate  and  set  aside  the  default 
judgment  and  the  order  of  sale  heretofore  made,  and  for  leave  to  defend- 
ant to  tile  answer  instanter,  and  the  court,  being  fully  advised  in  the 
premises,  orders  and  directs  that  said  order  of  sale  heretofore  made  be. 
and  the  same  is,  hereby  suspended,  pending  the  ultimate  verdict  and  de- 
cision of  said  cause,  and  defendant  given  leave  to  file  an  answer  instanter. 
costs  to  follow  the  suit. 


No.  59.    Answer  of  defendant  to  the  petition  of  plaintiff  in 
attachment. 

D.  C,  Jr.,  Plaintiff, 

vs-  Case  No. . 

G.  S.,  Defendant. 

An  s  web. 

1.  First  Defense: 

Now  comes  the  defendant,  and,  for  his  first  defense  herein,  admits  the 
execution  and  delivery  to  the  payee  set  out  in  plaintiff's  petition,  each  and 
all  of  the  several  notes  herein  described. 

Defendant  further  says  that  plaintiff  is  not  the  bona  fide  holder  for 
value  of  said  notes;  that  the  same,  and  each  of  them,  were  transferred 
and  assigned  to  him  after  the  maturity  thereof,  without  consideration, 
and  for  the  purpose  of  collection  only. 

2.  Second  Defense: 

Defendant,  for  his  second  defense  herein,  admits  the  execution  and  de- 
livery to  the  payee  set  out  in  plaintiff's  petition,  eacli  and  all  of  the  sev- 
eral notes  therein  described. 

Defendant   further  says   that   the   note   for   dollars,   the   note 

for    dollars,    the    note    for    dollars    and    the    note    for 

■ dollars,  set  out  in  plaintiff's  second,  third,  fifth  and  sixth  causes 

of   action    in    said    petition,    are    without    consideration    and    wholly    void: 

that  sometime  about  the  year  IS one  B.  A.  K.,  then  B.  A.  8..  and  this 

defendant  became  the  owners  in  fee  simple,  each  having  an  undivide-l 
one-half  interest   therein,   of  certain   lands  in   tli   State  of  California,  said 

B.  A.  K.,  then  B.  A.  S.,  paying  the  sum  of  dollars,  the  amount 

represented  by  the  notes  set  out  in  plaintiff's  second,  third,  fifth  and  sixth 
causes  of  action:   that,  by  reason  of  the  failure  of  the  irrigating  company 

£  •    i  •  ©or. 

furnishing  the  water  supply,  the  land  became  arid  and  valueless,  and.  by 
reason  thereof,  the  land  project  was  by  them  and  each  of  them  aban- 
doned;   that    some    years    afterward,    about    the   day    of    , 


MERWINE    ON    REAL    ACTIONS.  170 

10 ,  defendant  executed  and  delivered  to  said  B.  A.  K.,  formerly  B.  A. 

S.,  the  notes  set  out  in  plaintiff's  second,  third,  fifth  and  sixth  causes  of 
action,  but  defendant  avers  that  there  was  no  consideration  passing  from 
said  b.  A.  K.  to  him  for  the  execution  of  said  notes,  and  that  the  same 
were  without  any  consideration  whatever. 

3.     Third  Defense: 

Defendant,  for  his  third  defense  herein,  admits  the  execution  and  de- 
livery to  the  payee  set  out  in  plaintiff's  petition,  each  and  all  of  the  sev- 
eral notes  therein  described. 

This  defendant  says  that  said  notes,  and  each  of  them,  were  trans- 
ferred, assigned  and  delivered  to  plaintiff  long  after  the  maturity  thereof. 

Further  answering,  this  defendant  says  that  he  is  the  owner  of  the 
undivided   one-half  interest  in  and  to  the  following  real  estate,  to-wit:    in 

the   township   of   — ,    county   of   ,    and    State   of    Ohio,    and 

bounded  and  described  as  follows:  (Here  insert  description  of  real  estate) 
that   said  B.  A.   K.   is   the  owner  of  the   other   undivided   half   interest:    in 

said   lands;   that  said  B.    A.   K.  has  continuously,   since ,   18 , 

enjoyed  the  possession  of  said  premises,  together  with  all  the  lands,  issues 
and  profits  thereof,  and  had  and  maintained  exclusive  control  and  posses- 
sion thereof;  that  the  value  of  the  lands,  issues  and  profits  from  the  

day  of  ,  IS ,  are  reasonably  worth  the  sum  of  dol- 
lars. 

This   defendant    therefore   asks    judgment,   by    way   of   set-off,    for    said 

sum  of  dollars,  and  for  all  further  and  proper  relief. 

B.  G., 
Attorney  fur  Defendant. 

Verification. 

No.  60.     Reply  of  plaintiff  to  answer  of  defendant. 

D.  C,  Jr..  Plaintiff, 

vs.  Case  No.  . 

G.  S.,  Defendant. 

Reply. 

For  his  reply  to  the  First  Defense  of  the  second  amended  answer,  the 
plaint  ill'  denies  that  he  is  not  the  bona  fide  holder  for  value  of  the  notes 
set  forth  in  the  petition,  and  denies  that  the  same,  or  any  of  them,  were 
transferred  and  assigned  to  him  without  consideration,  or  for  the  purpose 
of  collection  only. 

For  reply  to  the  Second  Defense  of  the  second  amended  answer  herein, 

plaintiff   denies    that    t  lie    note   for   $ ,    the   note    for   $ ,   the 

note  for  $ and  the  note  for  $ ,  set  out  in  plaintiff's  sec- 
ond, third,  fifth  and  sixth  causes  of  action  in  plaintiff's  petition,  are  with- 
out consideration,  and  wholly  void. 

Plaintiff  further  says  that  he  has  not  information  concerning  he  other 
,, fitter-  and  things  s.'t  forth  in  defendant's  second  defense  in  hl^  second 
amended  answer  contained,  other  than  as  obtained  from  said  second 
amended  answer,  and  therefore  denies  each  and  every  allegation  therein 
contained  not  hereinabove  specifically  admitted  to  be  true. 


171  FORMS. 

For  reply  to  the  Third  Defense  of  the  second  amended  answer  herein, 
the  plaintiff  admits  that  said  notes,  and  each  of  them,  were  transferred, 
assigned  and  delivered  to  the  plaintiff  after  the  maturity  thereof,  and 
upon  the  dates  set  forth  in  the  petition  herein. 

Plaintiff  further  says  that  he  is  informed,  and  therefore  admits  the 
fact  to  be,  that  the  said  defendant  and  the  said  B.  K.  are,  and  for  a  long 
time  have  been,  owners  of  undivided  one-half  interests,  respectively,  in  the 
real  estate  described  in  the  third  defense  to  said  second  amended  answer, 
subject,  however,  to  the  dower  estate  of  C.  S.;  that  the  time  or  the  exact 
extent  or  the  nature  of  the  possession  and  rights  of  said  B.  K.  and  S.  in 
said   premises  this  plaintiff  does  not   know,   and   therefore  cannot  state. 

For  further  reply,  the  plaintiff  denies  each  and  every  allegation  in 
said  third  defense  contained  not  herein  specifically  by  him  admitted  to  be 
trse. 

Wherefore,  plaintiff  prays  as  in  his  petition.  D.  C,  Jr., 

Attorney  fur  Plaintiff. 

Reply  should  be  verified  as  in  other  cases. 

No.  61.    Verdict  of  jury  on  trial  of  the  issues  in  attachment 
proceedings. 

D.  C,  Jr.,  Plaintiff, 

vs.  Case  No.  — . 

G.  S.,  Defendant. 

We,  the  jury,  being  duly  impaneled  and  sworn,  find  the  issues  in  this 
case  in  favor  of  the  plaintiff,  D.  C,  Jr.,  and  assess  the  amount  due  to  the 

plaintiff  from  the  defendant  at  the  sum  of  $ . 

H.  R.  G.,  Foreman. 

No.  62.     Motion  of  defendant  to  vacate  and  set  aside  verdict 
of  jury  and  for  new  trial  in  proceedings  in  attachment. 

D.  G,  Jr.,  Plaintiff, 

vs.  Case  No.  

G.  S.,  Defendant. 

Now  comes  the  defendant,  and  moves  the  court  to  set  aside  and  vacate 
the  verdict  of  the  jury,  and  for  a  new  trial,  for  the  following  reasons- 

1.  The  verdict  is  not  sustained  by  sufficient  evidence. 

2.  The  verdict  of  the  jury  is  against  the  weight  of  the  evidence. 

3.  The  amount  of  damages  awarded  are  excessive. 

4.  The  court  erred  in  rejecting  testimony  which  was  offered  by  de- 
fendant. 

5.  The  court  erred  in  admitting  testimony  of  plaintiff  to  which  the  de- 
fendant at  the  time  objected. 

6.  The  verdict  should  have  been  for  the  defendant  under  the  testimony. 

7.  Errors  of  law  occurring  at  the  trial  and  excepted  to  by  the  de- 
fendant. 

8.  The  court  erred  in  its  charge  to  the  jury.  B.  G., 

Attorney  for  Defendant. 


MERWINE    ON    REAL    ACTIONS.  172 

No.  63.     Judgment  and  order  of  the  court  overruling  motion 
for  new  trial  and  order  of  sale. 

D.  C,  Jr.,  Plaintiff, 

vs.  Case  No.  . 

G.  S.,  Defendant. 

This  clay  this  cause  came  on  to  be  heard  on  the  motion  of  the  defendant 
for  a  new  trial,  was  argued  by  counsel  and  submitted  to  the  court,  and, 
upon  consideration  thereof,  the  court  finds  that  said  motion  is  not  well 
taken,  and  therefore  overrules  the  same,  and  judgment  is  ordered  ren- 
dered on  the  verdict  of  the  jury  heretofore  rendered  herein. 

It  is  therefore  considered,  ordered  and  adjudged  that  the  plaintiff  re- 
cover of  the  defendant   said  sum  of  dollars,  with   interest  from 

the day  of  .  19 ,  as  heretofore  by  the  verdict  of  the  jury 

herein  found  due  him.  together  with  his  costs  herein  expended. 

To  all  of  which  rulings,  orders  and  judgments  of  the  court  the  defend- 
ant excepts. 

And,  on  motion  of  the  said  plaintiff,  it  is  ordered  that  the  sheriff  pro- 
ceed, as  upon  execution,  to  appraise,  advertise  and  sell  the  real  estate 
heretofore  attached  in  this  action,  and  that  he  report  his  proceedings  to 
this  court  for  confirmation. 

On  motion  of  counsel,  and  for  good  cause  shown,  publication  of  notice 
of  sale  in  German  newspaper  is  hereby  dispensed  with. 

No.  64.     Order  of  sale  in  attachment  proceedings  issued  by  the 
clerk  to  the  sheriff. 

Coubt  of  Common  Pleas. 

State  of  Ohio,  County,  ss. : 

To  the  Sheriff  of  said  County,  Greeting: 

Whereas,   D.   C,  Jr.,   plaintiff,   on   the  day  of  ,  A.  D. 

19 ,   sued   out   a   writ   of   attachment   from   the   clerk   of   the   Court   of 

Common    I'leas   of    said   County,    directed    and    delivered    to   the 

sheriff  of  said  county,  requiring  him  to  attach  the  lands,  tenements,  goods, 
chattels,  stocks  or  interest  in  stocks,  rights,  credits,   money  and  effects  of 

,  defendant,  in  his  county,  not  exempt  by  law  from  being  applied 

to  the  payment  of  the  plaintiff's  claim,  or  so  much  thereof  as  would  sat- 
isfy the  plaintiff's  claim. 

Ami  said  sheriff  returned  said  writ  executed  by  attaching  the  follow- 
ing:     I  Here   insert    description  of  real    estate. 

It  is  therefore  considered,  ordered  and  adjudged  by  the  court  that  the 
plaintiff  recover  of  the  defendant  said  sum  of dollars,  with  in- 
terest from  the  day  of  ,  as  heretofore  by  the  verdict  of 

the   jury   herein    found   due   him.   together   with   his   costs   herein   expended. 

To  all  of  which  rulings,  orders  and  judgments  of  the  court  the  defend- 
ant excepts.  And,  upon  motion  of  the  said  plaintiff,  it  i-  ordered  that 
the  sheriff  proceed,  as  upon  execution,  to  advertise  and  sell  the  real  es- 
tate heretofore  attached   in   this  action,  and   that   he   report  his  proceedings 


173  FORMS. 

to  this  court  for  confirmation.  On  motion  of  counsel,  and  for  good  cause 
shown,  publication  of  notice  of  sale  in  German  newspaper  is  hereby  dis- 
pensed with. 

And   afterwards   such  proceedings   were  had   in  said   Court  of   Common 

Pleas  of County  that,  at  the  term  thereof,  A.  D.  19 , 

the  said  plaintiff  recovered  a  judgment  against  the  said  defendant  for  the 
Mini  of  dollars  damages,  and  for  costs,  taxed  at  dollars. 

You  ark  Therefore  Hereby  'Commanded,  After  applying  the  moneys 
arising  from  the  sale  of  perishable  property  attached  in  said  cause  (if  any 
have  been  so  made  i ,  to  sell  so  much  of  the  said  property  remaining  in 
your  hands,  and  so  much  of  said  personal  property,  and  lands  and  tene- 
ments, if  any,  whether  held  by  legal  or  equitable  title,  as  may  be  neces- 
sary to  satisfy  said  judgment,  under  the  same  restrictions  and  regula- 
tions as  if  the  same  had  been  levied  on  by  execution. 

You  will  make  return  of  your  proceedings  herein  to  our  said  Court 
of  Common  Pleas  within  sixty  days  from  the  date  hereof,  and  have  you 
tin  n  and  there  this  writ. 

Witness   my  signature  as  clerk  of  our  said   Court  of   Common   Pleas, 

and  the  seal  of  said  court,  at  ,  Ohio,  this  — —  day  of  , 

1!) H.  C.  P..  Clerk., 

By  J.  S.  \Y.,  Deputy  Cleric 

No.  65.     Sheriff's  return  of  his  proceedings  under  the  order  of 
sale. 

The  State  of  Ohio,  County,  ss. : 

In  obedience  to  the  command  of  the  hereto  annexed,  I  did,  on  the  

day  of ,  summon  L.  C.  P.,  D.  M.  R.  and  A.  P.  S.,  three  disinter- 
ested freeholders  of  said  county,  who  were  by  me  duly  sworn  to  view  and 
appraise    the    lands    and    tenements   therein    described;    and   afterward,    on 

the  day  of  ,  A.   D.   19 ,  said  appraisers  returned  to  me, 

under  their  hands  and  seals,  that  they  did,  upon  actual  view  of  the  prem- 
ises, estimate  and  appraise  the  real  value  in  money  of  the  same  at  

dollars.  A  certified  copy  of  said  appraisal  I  forthwith  deposited  in  the 
otiice  of  the  clerk  of  the  Court  of  Common  Pleas  of  said  county.     And  on 

the    day    of    ,    19 ,    I    caused    to    be    advertised    in    the 

(a  newspaper  printed  and  published,  and  of  general  circulation, 

in  County)    said  lands  and  tenements  to  be  sold   at  public  sale 

at  the  door  of  the  court  house  of  said  county,  on  the day  of , 

A.  D.   19 .   at  o'clock  —  M.  of  said  day.     And  having  advertised 

said  lands  and  tenements  for  more  than  thirty  days  previous  to  the  day 
of  sale,  to-wit:  consecutive  weeks,  and  in  pursuance  of  said  no- 
tice.  I  did,  on  said  day  of  .  A.  D.    19 .  at   the  time  and 

place  above  mentioned,  proceed  to  offer  said  land<  and  tenements  at  pub- 
lic auction  at  the  door  of  said  court  house,  and  then  and  there  came  D.  C, 

who  bid  for  the  same  the  sum  of  dollars;    and   said  sum  being 

more  than  two-thirds  of  the  appraised  value  thereof,  and  said  D.  C.  being 
the  highest  and  best  bidder  therefor,  I  then  and  there  publicly  sold  and 
struck  off  said  lands  and  tenements  to  him  for  said  sum  of  dol- 
lars.                                                                                              G.  J.  K.,  Sheriff. 


MERWINE    ON    REAL    ACTIONS.  174 

No.  66.     Proof  of  publication  of  sheriff's  sale  and  the  legal 
notice  of  such  sale. 

State  of  Ohio,  County,  ss. : 

1,  A.  R.  K.,  being  duly  sworn,  depose  and  say  that  the  notice  of  case 

No.  ,  D.   t  .,  Jr.,   plaintiff,  vs.  G.   S.,  defendant,  of  which  a  true 

copy  is  hereunto  affixed,  was  published  times  ,  and  immedi- 
ately prior  t<>  the  day  of  ,  A.  D.   19 ,  the  day  of  the  sale 

was  therein  mentioned   in  the  ,  a  daily  newspaper  printed  in  the 

city  of  ,  county  of ,  State  of  Ohio,  and  of  general  circula- 
tion therein.  A.  R.  K. 

Sworn   to  before  me  and   subscribed   in  my  presence  this  day  of 

,  1<J .  E.  H.,  Notary  Public. 


Legal  Notice. 

Sheriff's  Sale  of  Real  Estate. 

D.  G,  Jr.,  Plaintiff, 

vs.  Case  No.  w 

G.  S.,  Defendant. 

In  pursuance  of  an  order  of  sale  of  attached  property,  from  said  court 
to  me  directed,  1  will  offer  for  sale,  at  public  auction,  at  the  door  of  the 

court  house  in  the  city  of  ,  county,  Ohio,  on   the  

day   of  ,   A.   D.    19 ,   at o'clock  —  M.,  the   following  de- 
scribed real  estate,   situate  in   the  county  of  and  State  of  Ohio, 

and  in  the  township  of  ,  and  bounded  and  described  as  follows: 

(Here  insert  description  of  real  estate.) 

Appraised  at  $ . 

Terms  of  sale,  cash.  G.  J.  K.,  Sheriff, 

By  E.   L.   H.,   Deputy. 


D.  C,   Attorney. 


German  publication  dispensed  with. 


No.  67.     Appraisement  of  real  estate  and  oath  of  appraisers. 

The  State  of  Ohio,  County: 

To  L.  ('.  />..  D.  M.  /'.  and  A.  P.  S.,  Freeholders  of  • County,  State 

<,f  Ohio: 

Whereas,  On  the  day  of  ,  A.  D.  10 ,  D.  C.  sued  out 

a  writ  of  attachment  in  the  action  of  D.  C,  Jr.,  vs.  G.  S.,  on  which  the 
premises  hereinafter  described  were  seized  and  attached,  said  action  being 

filed   in  the  Common   Pleas  Court  of  said  County,  said   premises 

being  described   as  follows:     (Here  insert  description  of  real   estate.) 

And  WHEBEA8,   Afterward,  to-wit :    at  the  term  of  said  court, 

A.  D.  19 ,  such   proceedings  were  had  upon  said  petition,  by  said  court, 

that  the  sheriff  of  County  was  ordered   to   sell    said    real   estate, 

as  upon  judgments  and  executions  at  law.  Now,  therefore,  according  to 
the  statute  in  such  cases  made  and  provided,  I  do  hereby  call  and  appoint 
you,  the  said  A.  P.  S.,  L.  ('.  L.  and  D.  M.  R.  an  inquest,  and  do  require 


175  FORMS. 

you,  on  oath,  forthwith  to  view,  estimate  and  appraise  the  real  value  of 
said  premises,  in  money,  and  return  to  me  your  doings,  under  your  hands 
and  seals. 

Given  under  my  hand  and  seal  this  day  of ,  A.  D.  10 . 

G.    J.    K.,    Sheriff,    [seal.] 
By  E.  L.  H.,   Deputy. 

Personally   appeared   hefore  me,  G.  J.   K.,   sheriff  of   County 

aforesaid,  the  above  named  A.  P.  S.,  L.  C.  L.  and  D.  M.  R.,  appraisers 
aforesaid,  who  are  judicious,  disinterested  freeholders,  and  citizens  of  said 
county  of  ,  and  were  personally  sworn  according  to  law  to  dis- 
charge the  duties  of  said  appointment. 

Witness  my  hand  and  seal  this  day  of  ,  A.  D.  19 . 

G.    J.   K.,   Sheriff,    [seal.] 
By  E.  L.  H.,  Deputy. 

To  G.  J.  K.,  Sheriff  of County,  Ohio,  as  aforesaid : 

In  pursuance  of  the  foregoing  appointment  we  have  proceeded  to  view 
the  real  estate  and  premises  described  above,  and,  from  actual  view  of  the 
same,  we  do  estimate  the  real  value  thereof  in  money  to  be  -  dol- 
lars. 

Given   under   our   hands   and   seals   this   day    of  ,    A.    1). 

19 •  A.    P.    S.,         [SEAL.] 

D.    M.    R.,         [SEAL.] 
L.    C.    L.  [SEAL.] 

No.  68.  Entry  confirming  sale,  ordering  distribution  and  the 
execution  and  delivery  of  a  deed  to  the  purchaser  at  sher- 
iff's sale  of  attached  property. 

D.  C,  Jr.,  Plaintiff, 

vs.  Case  No.  . 

G.  S.,  Defendant. 

On  motion  of  the  plaintiff,  and  on  liis  producing  the  return  of  the 
sheriff  of  the  sale  made  under  the  former  order  of  this  court,  on  careful 
examination  of  the  proceedings  of  the  said  sheriff,  being  satisfied  that 
the  same  have  been  had  in  all  respects  in  conformity  to  law  and  the 
orders  of  this  court,  it  is  ordered  that  the  said  proceedings  and  sale  be. 
and  they  are,  hereby  approved  and  confirmed.  And  it  is  further  ordered 
that  the  said  sheriff  convey  to  the  purchaser,  D.  C,  by  deed,  according  to 
law,  the  property  so  sold.    ' 

And    the    court,    coming    now    to    distribute   the    proceeds   of    said    sale, 

amounting  to  dollars,  it  is  ordered   that  the  sheriff,  out  of  the 

money  in  his  hands,  pay.  first,  the  costs  in  this  action,  taxed  at  $ • 

secondly,  to  the  plaintiff,  1).  C,  the  balance  of  said  $ .  amounting 

to  $ ,   to   be  applied  on  his  judgment  of  $ ,   with   inte: est 

at  per  cent,  from  the  day  of  ,  19 . 

The  court  finds  that  the  unpaid  balance  due  from  the  defendant,  G.  S., 
to  the  plaintiff,  D.  C,  is  the  sum  of  $ ,  for  which  said  sum  execu- 
tion is  awarded. 


MEKWINE    ON    REAL    ACTIONS.  176 

No.  69.     Sheriff's  deed  for  real  estate  sold  under  attachment 
proceedings. 

To  All  Persons  to  Whom  These  Presents  May  Come,  Greeting: 

Whereas,   On   the  clay  of  ,   19 ,  D.   C,  Jr.,   plaintiff, 

filed  his  certain  petition,  and  then  and  there  commenced  a  civil  action  in 

the  Court  of  Common  Pleas  of  County,  Ohio,  against  G.  S.,  and 

numbered    on    the    docket    of    said    court    as    case    No.    ,    praying, 

among  other  things,  for  a  judgment  against  said  G.  S.,  and  the  issuance 
of  a  writ  of  attachment  against  the  property  of  said  G.  S. ;  and 

Whereas,    Such    proceedings    were   had    in    said    action   that   the    said 

D.  C.,  Jr.,  on  the  day  of  .   19 ,  caused  to  be  issued  out 

of  the  office  of  the  clerk  of  said  court  an  order  of  attachment,  directed  tj 

the  sheriff  of  County,  Ohio,  commanding  him  to  attach  the  goods, 

chattels,    lands    and    tenements    of    the   said    G.    S.    in    the    said   county   of 

,   State  of  Ohio,   which  said  order  of  attachment   duly  came  inta 

the  hands  of  the  said  sheriff;  and 

Whereas,    On   the   day    of   .    19 ,    the   said   sheriff   of 

County,  Ohio,  attached  the  lands  and  tenements  hereinafter  de- 
scribed, as  the  property  of  the  said  G.  S.,  and  returned  his  said  action  upon 
said   order   thereafter  to  the   said   court;    and 

Whereas,   afterwards,   to-wit:    on   the  day   of   ,    19 , 

the   said    D.  C,   Jr.,  obtained,   by   the   consideration   of   said    court   at   the 

term,    19 ,    thereof,    a    judgment    against    said    G.    S.    for    the 

sum  of  $ with   interest  and  costs;    and 

Whereas,  Afterward,  to-wit:  on  the day  of  ,  19 ,  the 

said    D.    C,    Jr.,    sued    out    an    order    of    sale    in    said    action,    directed    to 

the  sheriff  of  County,  Ohio,  commanding  him  to  expose  for  sale 

the  lands  and  tenements  attached  by  him  as  aforesaid,  to  satisfy  the 
judgment  aforesaid,  and  of  said  writ,  with  his  proceedings  thereon,  he 
should    make   due    return;    and 

Whereas,  I,  the  said  G.  J.  K.,  sheriff  aforesaid,  having  caused  said 
premises  to  be  appraised  and  a  copy  of  the  appraisement  to  be  duly  filed 
in  the   office   of  the   clerk   of   said   court,    and   having  advertised    the   time 

and  place  of  the  sale  of  the  same  in  ,  a  newspaper  printed  and  of 

general  circulation  in  said  county,  for  more  than  thirty  days  prior  to  the 
day  of  the  sale,  and  otherwise  complied  with  the  provisions  of  said  writ, 
and  the   provisions   of  the  statute   in   such  cases   made   and   provided,   did, 

on   the   day    of   ,    19 ,    at    the    door    of    the    court    house 

in    said    county,   at   o'clock   M.,   of    said    day,   expose   for   sale,   at 

public    auction,    the    premises    hereinafter    described,    and    thereupon,    1).    C, 

Jr.,  having  bid  for  the  same  the  sum  of  $ — ,  which   sum  being  the 

highest  and  lx  si  bill  for  the  same  and  more  than  two-thirds  the  appraised 
value  thereof,  the  said  premises  were  then  and  there  struck  off  to  him, 
the  said    1).   ('.,   the  purchaser,   for   the  sum  of  $ ;    and 

WHEREAS,  The  said  court  at  its  term,  19 .  having  examine  ; 

the  proceedings  of  the  said  O.  J.  K.,  sheriff  aforesaid,  in  the  premises 
under  said  writ,  and  being  satisfied  that  the  sale  aforesaid  had  been  made 
in  all  respects  in  pursuance  thereof,  and  in  accordance  with  the  provisions 


177  FORMS. 

and  requisites  of  the  statute  regulating  such   sales,  should  be  confirmed, 

and  that  the  said  sheriff  of  County,  should  convey  the  said  reat 

estate,  by  deed  in  fee  simple,  to  the  purchaser,  D.  C. 

Now,  Know   Ye,  That  1,  the  said  G.  J.  K.,  sheriff  of  said  county  of 

,   by  virtue  of  said   judgment,   writs,   sale   and  confirmation,   and 

of  the  statute  for  such  cases  made  and  provided,  and  for  and  in  consider- 
ation   of   the    sum    of    $ ,    which    1    acknowledge    to    have    received 

from  D.  C,  and  of  the  premises  herein,  do  hereby  grant,  sell  and  convey 
unto    him,    the    said    D.    C,    his    heirs    and    assigns    forever,    the    following 

described   real    estate    situated    in    the    County    of   ,    the    State   of 

Ohio,  and  more  particularly  described  as  follows:  (Here  insert  description 
of  real  estate),  together  with  all  the  privileges  thereunto  belonging,  and  all 
the  right,  title  and  interest  to  the  said  G.  S.,  and  of  all  the  other  parties  to 
said  suit  of,  in  and  to  the  same. 

To  Have  and  to  Hold  the  premises  aforesaid  unto  the  said  D.  ( '., 
his  heirs  and  assigns  forever,  as  fully  and  completely  as  the  said  G.  J.  K., 

sheriff  of  County,   by    virtue  of  said   judgment,   writs,   sale  and 

confirmation,  and  of  the  statute  made  and  provided  for  such  cases,  might 
or  should  sell   and  convey  the  same. 

In  Witness  Whebeof,  I  have  hereunto  set  my  hand  this  —  day  of 
,   19 . 


Sheriff  of  County,   Ohio. 

Signed  and  acknowledged  in  the  presence  of 


State  of  Ohio,  County,  ss: 

Personally  appeared  before  me,  a  notary  public  in  and  for  said  county, 

the  above  named  G.  J.  K.,  sheriff  of  County,  Ohio,  the  grantor 

herein,  who  acknowledged  the  signing  and  sealing  of  the  same  to  be  his 
voluntary   act  and   deed  for   the   uses   and   purposes   therein   mentioned. 

In  Witness   Whereof,  I  have  hereunto  set  my  hand  and  seal  this  

day  of  ,  19 . 


Notary  Public,  Comity,  Ohio. 


CHAPTER  IV. 


SALE  OF  ENTAILED  ESTATES. 


Section. 

190.     General     discussion — Entailed 

estates  to  pass  to  issue  of 

first   donee. 
The    constitutionality    of    dis- 


191. 

192. 
193. 

194. 
195. 

196. 


entailing  acts. 

Where  the  action  must  be 
brought. 

Who  may  obtain  the  sale  of 
entailed  and  other  kindred 
estates. 

Such  sale  must  be  for  the  best 
interest  of  the  parties. 

Requisites  of  petition  for  sale 
of  entailed  estates,  and 
who  are  to  be  made  parties 
defendant  in  such  action. 

Procedure  incidental  to  the 
actions  for  the  sale  of  en- 
tailed  estates. 


SECTION. 

197.  Guardians  ad  litem  should  be 

appointed     for     minor     de- 
fendants. 

198.  Order    for    sale    and    ell'ect   of 

sale — Appointment  of  trus- 
tees. 

199.  A  sale  may  be  had  by  consent 

of  parties. 

200.  Report    and    confirmation    of 

sale  and  deed. 

201.  How    proceeds    of    such    sale 

are  to  be  disposed  of. 

202.  The  manner  of  investing  funds 

arising  from  the  sale  of  en- 
tailed estates. 

203.  Further    investment    of    pro- 

ceeds. 

204.  Who    to    receive    income    and 

pay  taxes  and  expenses. 

205.  The  manner  in  which  said  es- 

tates may  be  leased. 


Sec.  190.     General  discussion — Entailed  estates  to  pass  to  issue 
of  first  donee. 

The  limited  scope  of  this  work  forbids  any  general  discus- 
sion of  the  lav/  of  entailed  estates.  It  is  sufficient  here  to  say 
that  much  of  the  old  learning  of  the  law  of  entails  does  not 
obtain  in  Ohio. 

In  this  State  no  estate  in  fee  simple,  fee  tail  or  any  lesser 
estate,  in  lands  or  tenements,  lying  within  this  State,  can  be 
given  or  granted,  by  deed  or  will,  to  any  person  or  persons  but 
such  as  are  in  being,  or  to  the  immediate  issue  or  descendants 
of  such  as  are  in  being,  at  the  time  of  making  such  deed  or 
will ;  and  all  estates  given  in  tail  shall  be  and  remain  an  abso- 
lute estate  in  fee  simple  to  the  issue  of  the  first  donee  in  tail.1 


iGen'l    Code,   §8622    (R.   S.    §4200] 


178 


179 


SALE   OF    ENTAILED    ESTATES. 


§191 


Sec.  191.    The  constitutionality  of  disentailing  acts. 

Early  in  the  history  of  the  legislation  of  the  procedure  for 
the  sale  of  entailed  and  other  kindred  estates,  it  was  decided 
that  such  disentailing  acts  were  constitutional ; 2  but  the 
statutes  which  authorize  the  proceedings  for  the  sale  of  entailed 
estates  are  unconstitutional  when  applied  to  estates  sought  to 
be  sold  which  became  vested  before  the  passage  of  the  statutes 
authorizing  the  procedure.3 

But  the  Act  of  April  4,  1S59,  and  the  supplemental  acts  of 
March  30,  1864,  in  so  far  as  they  affect  and  apply  to  estates 
created  subsequent  to  their  passage,  are  not  in  contravention 
of  the  Constitution.4 

In  some  States  it  has  been  held  that  courts  of  equity  have 


2  Carroll  v.  Olmsted,  16  0.  201. 

3  Gilpin  v.  Williams,  25  0.  S. 
283,  in  which  it  was  said:  "Mcll- 
vaine,  J.:  It  is  admitted  that  the 
act  of  1805  is  retroactive  by  its 
terms;  but  it  is  claimed  that  this 
act  merely  prescribes  the  rule  by 
which  the  act  of  1859  must  be  con- 
strued: hence,  the  worda  'has  been 
created,'  as  contained  in  the  act  of 
18G5,  do  not  refer  to  an  estate 
created  before  the  passage  of  the  act 
of  1850.  And  if  this  construction 
be  adopted,  it  is  then  claimed  that 
the  act  of  1859  does  not  authorize 
such  proceedings  where  the  estates 
tvere  created  before  its  passage;  and 
therefore  there  was  no  legislative 
authority  for  the  proceeding  to 
order  a  sale  in  this  case. 

"It  is,  no  doubt,  the  duty  of  courts 
to  construe  statutes  liberally,  in  or- 
der to  save  them  from  constitutional 
infirmities.  We  think,  however, 
that  the  Legislature  certainly  in- 
tended to  give  the  act  of  1859  a 
retrospective  as  well  as  a  prospec- 
tive operation. 

'"The  first  section  provides,  'That 
it  shall  be  competent  for  the  courts 
of  common  pleas,  on  application  of 
the  first  donee  in  tail,  or  for  life, 
to  authorize  the  sale  of  entailed 
estates  and  estates  for  life  with 
remainder  over,  when  satisfied  that 


the  sale  would  be  for  the  benefit  of 
the  applicant  and  do  no  substantial 
injury  to  the  heirs  in  tail  or  oth- 
ers in  succession,  reversion  or  re- 
mainder.' 

"The  terms  here  used  are  cer- 
tainly broad  enough  to  include  the 
estates  created  before  its  passage, 
and  must  be  held  to  have  that  ef- 
fect in  all  cases  where  the  sale  of 
such  estates  in  invitum  is  within 
the  scope  of  legislative  power." 

*Nimmons  v.  Westfall.  33  O.  S. 
226.  "While  the  General  Assembly 
may  not  constitutionally  legislate 
so  as  to  disturb  acquired  rights  and 
vested  estates,  it  has  power  to  legis- 
late upon  the  subjects  embraced  in 
the  acts  of  1859,'  1804  and  1805. 
Without  entering  upon  a  discussion 
of  the  policy  of  such  legislation,  the 
estates  embraced  in  these  statutes 
are  within  the  scope  of  legislative 
power,  and  if  the  act  providing  for 
and  regulating  the  sale  of  such  es- 
tates is  in  force  at  the  time  the 
estate  is  created,  it  will  be  con- 
sidered as  created  subject  to  the 
provisions  of  the  statute.  Tn  such 
case,  there  is  no  invasion  of  rights 
of  private  property,  and  such  stat- 
utes are  not  in  conflict  with  §  19  of 
Article  1  of  the  Constitution,  or 
the  28th  section  of  Article  2."    Ibid. 


§§  192,  193  MERWINE    ON    REAL    ACTIONS.  180 

the  power,  without  legislative  enactment,  to  sell  entailed  and 
kindred  estates.5 

But  the  jurisdiction  o^  our  common  pleas  court  to  hear  and 
determine  such  sales  depends  entirely  on  legislative  enactment.6 

Sec.  1S2.     Where  the  action  must  be  brought. 

It  is  provided  by  statute  (Gen'l  Code  §  11268  [R.  S.  §  5019]), 
that  actions  for  the  following  causes  must  be  brought  in  the 
county  in  which  the  real  estate  is  situated,  except  as  provided  in 
Gen'l  Code  §  11269  (R.  S.  §  5020)  (where  property  is  located  in 
more  than  one  county),  and  Gen'l  Code  §  11270  (R.  S.  §  5021) 
(specific  performance)  : 

1.  For  the  recovery  of  real  property,  or  of  an  estate  or 
interest  therein. 

2.  For  the  partition  of  real  property. 

3.  For  the  sale  of  real  property  under  a  mortgage,  lien  or 
other  encumbrance  or  charge. 

While  there  is  no  decided  ease  warranting  the  statement 
that  the  third  and  last  paragraph  of  the  last  statute  is  the  law 
controlling  the  venue  of  such  actions,  yet  a  careful  reading  of 
all  of  the  statutes  controlling  where  all  actions  «mst  be 
brought,  would  seem  to  so  indicate. 

Sec.  193.  Who  may  obtain  the  sale  of  entailed  and  other  kin- 
dred estates. 
Courts  of  common  pleas,  in  an  action  by  the  tenant  in  tail 
or  for  life,  or  by  the  grantee  or  devisee  of  a  qualified  or  con- 
ditional  fee,  or  of  any  other  qualified,  conditional  or  deter- 
minable interest,  or  by  a  person  claiming  under  such  tenant, 
grantee,  or  devisee,  or  by  the  trustees  or  beneficiaries,  if  the 
estate  is  held  in  trust,  may  authorize  the  sale  of  any  estate, 
where  the  same  is  created  by  will,  deed,  contract  or  came  by 
descent,  when  satisfied  that  the  sale  thereof  would  be  for  the 
benefit  of  the  person  holding  the  first  and  present  estate,  in- 
terest, or  use.  and  do  no  substantial  injury  to  the  heirs  in  tail, 

5  2   Tiatos   on   Pleading,    Practice,  v.  Dellinger,  127  X.  C-.\r.  .100;  37  S. 

Parties     and     Form,     1577,     citing  E.    494;     Ridley    v.    Balliday,    106 

Thompson   v.    A. lams.  205   111.   552;  Tenn.  607;   82  Am.  St.  Rep.  902. 

69  X.  E.  I  ;   Downs  v.  Long.  70  Md.  eGen'l      Code,     §  L1925      (R.     S. 

382;  St.   Paul   v.   Mintzer,  65  Minn,  85803).      Gilpin    v.    Williams,    25 

124-.  60  Am.  St.  1!,.,,.    lit;  Schweit-  O.  S.  283;  Ream  v.  Wools,  fil  O.  S. 

zer  v.  Bonn,  55  X.  J.  Eq.  107;  Marsh  131. 


181 


SALE   OF    ENTAILED    ESTATES. 


§194 


or  others  in  expectancy,  succession,  reversion,  or  remainder. 
But  this  provision  of  the  statute  shall  not  extend  to  an  estate 
in  dower  or  by  curtesy.7 

From  the  authority  given  above  it  is  seen  that  the  probate 
court  is  without  power,  even  when  the  parties  are  before  it, 
and  consenting  thereto,  to  make  a  sale  of  an  entailed  estate,  so 
as  to  give  the  purchaser  the  title  thereto  in  fee  simple.  The 
probate  court  can  only  make  such  sales  as  it  is  authorized  to 
do  by  statute. 


Sec.  194.  Such  sale  must  be  for  the  best  interest  of  the  parties. 

Where  real  estate,  consisting  of  low  lands  by  a  river,  was 
held  by  a  lite  tenant,  with  remainder  to  other  tenants,  and  it 
was  subject  to  overflow,  and  it  could  be  sold  to  a  city  for  its 
uses,  which  made  other  portions  of  the  real  estate  held  by  the 
same  parties,  under  the  same  title,  more  valuable,  the  court 
held  it  a  proper  case  for  sale  as  provided  by  statute ; 8  and 
where  plaintiff  was  unable  to  manage  the  real  estate  entailed. 
so  as  to  make  it  profitable,  and  where1  the  buildings  were  decay- 
ing, thus,  depreciating  {he  value  of  the  real  estate,  the  court 
authorized  a  sale  under  the'statute.9 

Another  instance  authorizing  a  sale  under  the  disentailing 
act,  was  where  the  taxes  and  necessary  cost  of  repairs  were 
so  high  that  the  income  derived  from  the  life  estate  was  insuffi- 
cient to  pay  the  same.10 

It  was  held  sufficient  to  authorize  the  sale  of  an  entailed 
estate  where  the  petition  alleged  that  the  taxes  were  high ; 
that  street  assessments  were  contemplated  on  two  streets 
abutting  said  property;  that  the  house  thereon  is  old,  requiring 
continual  repair  and  is  not   in  safe  condition  for  occupancy; 


7Gen'l  Code,  §11925  (R.  S. 
§5803).  In  Jones  v.  Wright,  1  C. 
C.  N.  S.  61,  it  is  said:  "The  juris- 
diction of  the  probate  court  is  lim- 
ited to  that  conferred  on  it  by  the 
Constitution  and  .^tahites  of  Ohio. 
It  has  no  jurisdiction  to  sell  en- 
tailed estates — such  jurisdiction  is 
conferred  on  the  court  of  common 
pleas  by  the  section  of  R.  S.,  supra, 
and  even  if  the  parties  had  con- 
sented, no  jurisdiction  could  be  con- 


ferred, and  any  action  taken  by 
said  court  in  this  regard  would  be 
coram    -non   judice." 

s  Miller  v.  Pringle,  Franklin 
County  Common  Pleas  Court.  Sep- 
tember  Term,    1904. 

a  Nimmons  v.  Westfall,  33  0.  S. 
213. 

io  Sherman  v.  Sherman.  2  C.  C. 
N.  S.  454.  See  also  Form  509, 
Yaple's  Pleading.  Vol.  2.  page  791. 


§195 


MERWINE    ON    REAE    ACTIONS. 


182 


that  no  income  can  be  derived  therefrom,  and  that  to  sell  said 
real  estate  it  will  bring  $15,000." 

It  was  sufficient  for  the  petitioner,  seeking  thj  sale  of  an 
entailed  estate,  to  allege  that  there  is  situated  on  the  said  real 
estate  a  brick  house,  of  nine  rooms,  the  value  of  which  is  about 
$3,000,  and  the  rental  value  thereof  not  more  than  $15  per 
month,  which  rents,  after  paying  taxes,  insurance  and  repairs, 
makes  the  same  a  very  poor  investment.12 

Sec.  195.     Requisites  of  petition  for  sale  of  entailed  estates,  and 
who  are  to  be  made  parties  defendant  in  such  action. 

In  all  such  actions  the  petition  must  contain  the  description 
of  the  estate  to  be  sold,  a  clear  statement  of  the  interest  of  the 
plaintiff  therein,  and  a  copy  of  the  will,  deed,  or  other  instru- 
ment of  writing  by  which  the  estate  is  created;  all  persons  in 
being  who  are  interested  in  the  estate,  or  who  may,  by  the 
terms  of  the  will,  deed,  or  other  instrument  creating  the  entail- 
ment, or  other  estate,  thereafter  become  interested  therein  as 
heir,  reversioner  or  otherwise,  are  required  to  be  made  parties 
to  the  petition ;  and  if  the  names  of  any  pesons  who  are  to  be 
made  parties  are  unknown  to  the  plaintiff,  or  if  the  residences 


«  Dukes  v.  Dukes,  4  C.  C.  508. 
The  facts  and  decision  in  this  last 
case  were  as  follows:  "Richard 
Dukes  dies  testate,  devising  to  his 
widow,  Delia  N.  Dukes,  as  follows: 
'T  give  and  devise  to  my  beloved 
wife,  Delia  X.  Dukes,  the  house  and 
lot  OD  which  the  same  is  situated, 
and  on  which  I  now  reside,  near 
Findlay,  in  the  county  and  State 
aforesaid,  and  described  as  follows 
[here  follows  a  pertinent  descrip- 
tion of  the  property],  during  her 
natural  life  also  all  my  household 
goods  and  furniture,  money,  note-, 
and  evidence  of  debts,  which  I  may 
own  and  possess  at  the  time  of  my 
death,  she,  my  said  wife,  to  use  and 
enjoy  during  her  natural  life.  At 
the  death  of  my  said  wife  the  -aid 
real  estate  above  described  and  the 
personal  property  remaining  uncon- 


sumed,  I  give  and  devise  to  my 
children,  share  and  share  alike.' 
The  widow  elected  to  take  under 
the  will. 

"Held:  1.  That  the  plaintiff  has 
a  life  estate  in  the  lands  described 
in  the  will.  2.  That  the  defendants 
the  other  devisees  named  in  the 
will,  take  a  fee  in  remainder.  3. 
That  plaintiff  has  the  right  to  ap- 
ply to  the  court  of  common  pleas 
and  have  the  relief  granted  her  as 
provided  by  §  S803,  Revised  Stat- 
utes. 4.  Such  rights  exist,  notwith- 
standing the  fact  that  the  real  es- 
tate devised  was  all  that  the  tes- 
tator was  seized  of  at  the  time  of 
his    death." 

i-  Stearns  v.  Stearns,  Common 
Pleas  Court,  Pickaway  County,  Ohio, 
April  Term,   190G. 


183 


SALE    OF    ENTAILED    ESTATES.' 


§196 


of  any  such  parties  are  unknown  to  the  plaintiff,  the  factshall 
be  verified  by  the  affidavit  of  the  plaintiff  and  the  sale  shall 
be  ordered,  notwithstanding  such  names  and  residences  are 
unknown.13 

The  affidavit  mentioned  in  the  foregoing  paragraph  should 
be  made  out  and  filed  in  the  ease  as  provided  therein.  The 
form  of  it  is  quite  simple,  and  it  need  only  contain  the  require- 
ments of  the  statute. 

A  copy  of  will,  deed,  or  instruments  creating  the  entailed 
estate,  must  be  attached  to  the  petition ;  but  if  such  copy  is 
not  so  attached  to  the  petition,  the  omission  to  so  attach  it  will 
not  invalidate  the  sale,  provided,  no  one  takes  advantage  of 
the  fact  while  the  matter  is  pending  in  the  courts.11 

Sec.  196.     Procedure  incidental  to  the  actions  for  the  sale  of 
entailed  estates 

The  manner  of  service  on  infants,  the  appointment  of 
guardians  ad  litem  and  answers  of  guardians  ad  litem  for  such 
infants,  service  of  summons  on  adults  and  infants  in  the 
county  and  in  other  counties  of  the  State,  the  procedure  in  ease 
of  insane  defendants  and  appointment  of  trustees  for  such 
insane  defendants,  and  the  answers  of  such  trustees  for  such 
insane  persons,  service  of  summons  by  publication  on  non- 
resident defendants  whose  places  of  residence  are  known  and 
those  whose  places  of  residence  are  not  known,  service  of  copy 
of  the  petition  on  non-residents  of  the  State,  the  affidavits 
and  orders  of  the  court  therein,  the  persons  who  are  to  be 
made  parties  to  the  a'ction,  all  of  these  and  kindred  topics  are 
discussed  in  the  first  chapter  of  this  book,  and  below  will  be 
found  the  references  to  the  sections  and  numbers  for  the  proper 
forms  for  procedure  pertaining  thereto.15 


isGen'l  Code,  §11026  (R.  S. 
§  5804 ) .  See  Nos.  70  and  84  fol- 
lowing, for  forms  of  petition;  also 
skeleton  form  found  in  Dukes  v. 
Dukes,  4  C.  C.  508 ;  see  also  Oyler 
v.  Scanlon,  33  0.  S.  308,  for  valu- 
able suggestions  in  preparation  ot 
petition. 

14  Oyler  v.  Scanlon,  33  O.  S.  308. 

is  Sec.  38  as  to  service  on  a  minor, 
§§39,  40,  41,  42,  43   and  44  as  to 


conduct  of  the  defense  of  a  minor. 
Nos.  310,  311,  312,  313,  142,  143, 
144  and  145  for  procedure  where  a 
defendant  is  insane;  §§  4G  and  47 
for  service  by  publication;  §49  for 
the  affidavit  required;  §51  as  to 
how  publication  is  made;  §  52,  when 
service  by  publication  is  complete; 
§  54  for  publication  against  an  un- 
known heir;  §  53  for  service  of  copy 
of  the  petition  out  of  the  State. 


§§  197,  198  MERWINE    ON    REAL    ACTIONS.  184 

Sec.  167.     Guardians  ad  litem  should  be  appointed  for  minor 
defendants. 

For  the  minor  defendants*,  guardians  ad  litem  should  be  ap- 
pointed, and  such  guardians,  in  representing  their  wards  in 
said  action,  at  all  times  should  be  controlled  and  guided  by 
the  principles  of  law  and  requirements,  set  forth  in  another 
part  of  this  work.16 

For  the  services  of  such  guardian  ad  litem,  a.  fee  may  be  paid 
out  of  the  funds  arising  from  a  sale  of  the  estate.17 

One  of  the  circuit  courts  of  this  State  has  held  that  in  all 
such  actions  to  sell  an  entailed  estate,  plaintiff's  attorney 
cannot  be  allowed  a  fee  for  his  services,  nor  can  the  costs  of 
the  ease,  nor  the  taxes  charged  against  the  real  estate,  be  paid 
out  of  the  fund  arising  from  the  sale.18 

In  a  ease  where  a  tenant  for  life  asked  for  the  sale  of  the 
undivided  half,  held  by  remainder  men,  who  maintained  that 
said  sale  would  injure  them,  it  was  held  that  the  court  had 
power  to  order  a  sale  of  the  whole,  with  the  consent  of  the 
tenant  for  life,  who  held  the  other  undivided  half,  it  appear- 
ing that  such  sale  would  not  injure  remainder  men.19 

Sec.  198.     Order  for  sale  and  effect  of  sale — Appointment  of 
trustees. 

If,  upon  the  hearing  of  the  petition,  it  be  made  to  appear  to 
the  court,  by  satisfactory  proof,  that  a  sale  of  the  estate  would 
be  for  the  benefit  of  the  tenant  in  tail  or  for  life,  and  do  no 
substantial  injury  to  the  heirs  in  tail,  or  others  in  expectancy, 
succession,  reversion,  or  remainder,  the  court  is  required  to 
direct  a  sale  of  the  estate  to  be  made,  and  the  manner  thereof, 
and  to  appoint  some  suitable  person  or  persons  to  make  the 
same:  and  such  sale  shall  vest  the  estate  sold  in  the.  purchaser, 
freed  from   the  entailment,  limitation  or  condition.20 

»«  Sherman    v.    Sherman,  2   C.   C.  '"  Sherman   v.   Sherman,   2   C.  C. 

N.      S.      256.        See      S  30      to      §  4  I  :         N.  S.  456. 

also  2  Bates  Pleading,  Practice,  Par-  '«  Sherman    v.   Sherman    2   C.   ('. 

lies  and    Forms,    1577,  citing   Pratt  N.  S.  456. 

v.   Bates,    161    Mass.  315;   37  N.  E.  '»  Oyler  v.  Scanlon,  33  0.  S.  308. 

439;    Ream  v.  Wools,  til    O.  S.   131.  20  Gen']     Code,     §11027     (R.     S. 

It  would  appear  thai  9iich  guardians  8  5805).    See  No.  72,  et  sequiler,  for 

should    be   appointed,    not    only    for  forms  under  this  paragraph, 
the   living   infants,   but  for   the  un- 
born as  well. 


185  SALE   OF    ENTAILED    ESTATES.  §§  199-202 

Sec.  199.     A  sale  may  be  had  by  consent  of  parties. 

All  parties  in  interest  may  appear  voluntarily  and  consent  in 
writing  to  such  sale.  And  testamentary  guardians  and  guar- 
dians appointed  by  the  court  of  probate,  may  assent,  in  the 
place  of  their  wards,  to  the  sale.-1 

Sec.  200.     Report  and  confirmation  of  sale  and  deed. 

The  law  requires  that  all  such  sales  shall  be  reported  to  the 
court  authorizing  the  same;  and  if,  on  examination  thereof,  it 
appear  that  the  sale  was  fairly  conducted  and  made,  and  that 
the  price  obtained  is  the  reasonable  value  of  the  estate  sold,  it 
is  the  required  duty  of  the  court  to  confirm  the  sale  and  direct 
a  deed  of  conveyance  of  the  premises  sold  to  be  made  to  the 
purchaser,  on  payment  of  the  purchase  money  or  on  securing 
the  payment  thereof  in  such  manner  as  shall  be  approved  by 
the  court.22 

Sec.  201.     How  proceeds  of  such  sale  are  to  be  disposed  of. 

The  statute  provides  thaf  all  money  arising  from  sales  under 
these  provisions  relating  to  the  sale  of  entailed  estates,  shall, 
for  the  purposes  of  descent,  succession,  reversion,  or  remainder, 
have  the  same  character,  and  be  governed  by  the  same  principles, 
as  the  estates  sold,  and  shall  pass  according  to  the  terms  of  the 
deed,  will  or  other  instrument  creating  the  estate.23 

Sec.  202.  The  manner  of  investing  funds  arising  from  the  sale 
of  entailed  estates. 
Money  arising  from  all  such  sales  must,  under  the  direction 
and  approval  of  the  court,  be  invested  in  the  certificates  of  the 
the  funded  debt  of  this  State,  or  bonds  of  any  political  sub- 
division thereof,  or  of  the  United  States,  or  in  bonds  or  notes 
secured  by  mortgage  on  unencumbered  real  estate,  situate  in 
the  proper  county,  of  double  the  value  of  money  secured 
thereby,  but  the  buildings  thereon,  if  any,  shall  be  well  in- 
sured against  loss  by  fire,  and  so  kept  by  the  mortgagor  for 
the  benefit  of  the  mortgagee  until  the  debt  is  paid,  and  on 
failure  so  to  be  insured,  mortgagee  shall  do  the  same,  and  the 

ziGen'l     Code,     §11028      (R.     S.  §5807).      See   Nos.    SI    and    90    foi 

§5S(i(ii.      S<-<-    Xcs.    73    and    87    for  forms  under  this  paiagraph. 
forms  under  this  paragraph.  23  Gea'l     Code,     §11930      (R.     S. 

22Gen'l     Code,     §11929      (R.     S.  §5808). 


§§203,204  MERWINE    ON    REAL    ACTIONS.  186 

expense  of  the  insurance  to  the  mortgagee  shall  be  repaid  by 
the  mortgagor,  and  be  a  lien  on  the  property  concurrent  with 
the  mortgage ;  or  the  court  may  order  the  same  to  be  reinvested 
in  other  real  estate  within  this  State,  under  such  restrictions 
as  it  may  prescribe,  which  investment  shall  be  reported  to  the 
court  and  subject  to  its  approval  and  confirmation ;  the  real 
estate  in  which  the  money  is  reinvested  shall,  for  the  purposes 
of  descent,  succession,  reversion,  or  remainder,  have  the  same 
character  and  be  governed  by  the  same  principles  as  the  estate 
sold,  and  shall  pass  according  to  the  terms  of  the  deed,  will, 
or  other  instrument  creating  the  estate  sold ;  the  court  shall 
appoint  competent  trustees  to  invest  the  money,  and  manage 
the  same,  who  shall,  from  time  to  time,  report  to  the  court  their 
proceedings,  and  the  condition  of  the  funds;  and  the  court 
shall  require  of  such  trustees  security  for  the  faithful  dis- 
charge of  their  duties;  may,  from  time  to  time,  require  addi- 
tional security ;  may  remove  such  trustees  for  cause  or  reason- 
able apprehension  thereof;  and  may  accept  the  resignation  of 
a  trustee  and  fill  a  vacancy  by  a  new  appointment.24 

Sec.  203.     Further  investment  of  proceeds. 

Money  arising  from  any  such  sales,  may,  under  the  direction 
and  approval  of  the  court,  be  invested  in  bonds  which  are 
either  a  portion,  or  the  whole  of  an  issue  of  bonds  secured  by 
first  mortgage  or  trust  deed,  upon  the  real  estate  so  sold  under 
such  restrictions  as  said  court  may  prescribe,  which  invest- 
ment must  be  reported  to  the  court  and  be  subject  to  its 
approval  and  confirmation.25 

Sec.  204.  Who  to  receive  income  and  pay  taxes  and  expenses. 
The  net  income  accruing  from  such  sales  of  entailed  estates 
must  be  paid  to  the  person  or  persons  who  would  be  entitled 
to  the  use  or  income  of  the  estate  were  the  same  unsold;  and 
all  taxes,  and  expenses  of  investment  and  the  management  of 
the  fund,  are  to  be  paid  by  the  person  or  persons  entitled  to 
the  income  thereof.26 

•-'»f:<.„-l     Code,     8H931      (R.     S.  ^(Wl     Code,     §11933      (R.     S. 

§5809),   as   passed   by    the   General  §  5809a). 

Assembly,    February   25,   1908.     See  ->;<;,^l     Code,    "§  11934      (R.     S. 

Nos.  90,  91  and  92  for  forms  under  §5810). 
this   paragraph. 


187  SALE   OP    ENTAILED    ESTATES.  §  205 

Sec.  205.     The  manner  in  which  said  estates  may  be  leased. 

Upon  like  proceedings  the  court  may  direct  that  such  estates 
may  be  leased  for  a  term  of  years,  renewable  or  otherwise,  as 
may  appear  most  beneficial,  and  upon  such  terms  as  may  ay  pear 
just  and  equitable ;  and  the  rents  and  profits  thereof  are  to  be 
paid  to  the  person  or  persons  who  might  otherwise  be  entitled 
to  the  use  and  occupancy  of  the  estate  or  the  income  thereof.27 

27Gen'l     Code,     §11935      (R.     S.  §5811). 


FORMS. 


PROCEEDINGS  TO  SELL  AN  ENTAILED  ESTATE. 


Forms. 

70.  The    petition    to    sell    entailed 

estate. 

71.  Waiver  of  summons  and  entry 

of   appearance. 

72.  Finding    and     decree     ordering 

sale    of    property    and    ap- 
pointing  appraisers. 

73.  Order  of  sale. 

74.  Sheriff's  return  of  his  proceed- 

ings under  the  writ. 

75.  The  order  for  appraisement. 

76.  The  oath  of  appraisers  and  the 

appraisement. 


Forms. 

77.  The  order  of  the  court  appoint- 
ing trustees  and  fixing 
bond. 

The  bond  of  trustees. 

The  official  oath  of  trustees. 

Answer   of  trustees. 

The  order  confirming  appraise- 
ment and  sale,  and  order 
for  deed  and  distribution  of 
proceeds. 

The  sheriff's  deed  in  sale  of 
entailed  estates. 

The  order  approving  proceed- 
ings and  ordering  sheriff 
to  turn  over  money  to 
trustee 


78. 
70. 
80. 
81. 


fio 


83 


No.  70.     The  petition  to  sell  entailed  estate. 

Court  of  Common  Pleas,  County,  Ohio. 

T.  J.  M.,  F.   J.  M.,   M.   D.   F. 
and  W.  H.   F., 

Plaintiffs, 
vs.  No. 

M.   M.   P.  and   L.   R.   P., 
Defendants. 


Plaintiffs  say  that  on  or  about  the 


day  of 


-,  one 


A.    F.    M.    seized    in    fee   simple    of   the    following    described    premises, 

situated  in  the  county  of  ,  in  the  State  of  Ohio,  and  bounded 

and  described  as  follows,  to-wit:  (Here  describe  said  real  estate), 
by  his  last  will  and  testament  duly  executed  and  delivered  and 
thereafter  duly  offered  for  and  admitted  to  probate  and  record  in 
the  Probate  Court  of county,  Ohio,  save,  devised  and  be- 
queathed the  said  real  estate,  lands  and  tenements  to  the  plaintiff, 
F.   J.    M.    for    life,    with   the   remainder   over    to   his    children. 

Plaintiff  says  that  the  said  F.  J.  M.  intermarried  with  his  co- 
plaintiff.  T.  J.  M.,  and  that  the  fruits  of  such  marriage  are  the 
defendant  M.  M.  P.  and  the  plaintiff,  M.  D.  F.;  the  said  plaintiff, 
W.   H.   F.,   is  the  husband  of   M.   D.   F.,  and   the   defendant   L.   R.    P., 

188 


189  FORMS. 

is  the  husband  of  the  said  M.  M.  P.;  that  all  of  said  children  have 
arrived   at   the   age  of   majority. 

In  the  last  will  and  testament  of  said  A.  M.,  deceased,  title 
to  the  said  real  estate  above  described  became  vested  in  the  said 
F.  J.  M.  and  his  heirs  and  assigns  for  life,  with  the  estate  in 
tail  in  the  children  of  the  said  F.  J.  M. 

Plaintiff  says  that  since  the  title  was  so  vested,  the  said  F. 
J.  M.  conveyed  the  said  life  estate  to  the  said  plaintiff,  T.  J.  M., 
to  her  heirs  and  assigns,  and  that  she  is  now  the  owner  and 
holder  thereof,  and  plaintiff  further  says  that  his  said  wife,  T.  J. 
M.,  and  this  plaintiff,  F.  J.  M.,  and  the  plaintiff,  M.  D.  F.,  and 
the  plaintiff,  W.  H.  F.,  and  the  defendants  M.  M.  P.  and  L.  R.  P. 
are  the  only  persons  in  being  who  are  interested  in  the  said  estate 
or  who  can  hereafter  become  interested  therein  as  heir,  reversioner, 
owner    of    life    estate    or    otherwise;     that    the    said    real    estate    lies 

along   the    bank    of   the   River   and    a    part   of    it    is    subject 

to   overflow   at  the   time  of  high   waters  of  said   river;    that   the  city 

of  is   desirous   of   purchasing   the   part   thereof  hereinbelow 

described  for  the  uses  of  said  city,  and  plaintiff  says  that  part  of 
the  land  so  desired  by  said  city  is  of  little  value  to  the  said  owner 
as  agricultural  land  on  account  of  said  high  water;  that  the  im- 
provements   contemplated    by    the    said    city    of    will    render 

the  remainder  of  said  farm  less  subject  to  overflow  and  will  be 
of  great  benefit  to  the  remainder  of  said  farm  land;  that  the  sale 
of  said  parcel  hereinafter  described  would  be  for  the  benefit  of 
said  owners  of  said  present  estate;  and  also  would  be  a  benefit 
and  do  no  injury  whatever  to  the  said  heirs  in  tail,  expectancy, 
succession,  reversion  or  remainder;  that  the  use  to  which  the  city 
expects  to  put  said  lands  makes  it  more  valuable  to  said  city  than 
to  any  other  person,  and  that  said  city  is  willing  to  pay  a  fair 
and  reasonable  compensation  therefor  in  view  of  the  uses  to  which 
said  city  expects  to  put  said  lands,  and  the  said  compensation 
is  larger  than  can  be  obtained  therefor  for  any  other  purpose. 

Plaintiff   says    that  the   portions   of   said    land    which   the    city   of 

is  desirous  of  acquiring  is  bounded  and  described  as  follows, 

to-wit:       (Here    describe    real    estate    sought    to    be    sold). 

Wherefore,  these  plaintiffs  pray,  that  if,  upon  the  hearing  of 
the  petition,  it  shall  be  made  to  appear  to  the  court,  by  satisfactory 
proof,  that  the  sale  of  the  said  parcel  hereinabove  last  described, 
would  be  for  the  benefit  of  the  persons  in  tail  or  for  life,  and  would 
do  no  substantial  injury  to  the  heirs  in  tail,  expectancy,  reversion 
or  remainder,  the  court  shall  direct  the  sale  of  said  premises  herein 
above  described  to  be  made  and  shall  direct  the  manner  therof,  and 
shall  appoint  some  suitable  person  or  persons  to  make  the  same, 
and  for  all  other  and  further  judgments,  orders,  decrees  and  relief 
as  to  the  court  shall  seem  just  and  the  nature  of  the  case  may  require. 

J.    J.    S., 
Attorney    for    Plaintiffs. 

Petition   should   be   verified   as   in   other  cases. 


MEKWINE    ON    REAL    ACTIONS.  190 

No.  71.     Waiver  and  entry  of  appearance. 

The  within  named  plaintiffs,  T.  J.  M.,  F.  M.,  M.  D.  F.  and  W. 
H.  F.  and  the  within  named  defendants,  M.  M.  P.  and  L.  R.  P., 
hereby  waive  the  issuing  and  service  of  summons  herein  and  enter 
their  appearance  and  consent   to  the  prayer  of  the  petition. 

T.    J.    M. 

F.    M. 

M.    D.    F. 

M.    M.    P. 

W.    H.    F. 

L.  R.   P. 

No.  72.     Finding  and  decree  ordering  sale  of  property  and 
appointing  appraisers. 

Court  of  Common   Pleas,  County,  Ohio. 

T.  J.   M.,   F.   J.  M.,  M.   D.  F. 
and  W.   H.  F., 

Plaintiffs, 

vs.  No.   . 

M.  M.   P.  and  L.  R.   P., 
Defendants. 

This  day  came  the  parties  and  thereupon  this  cause  came  on 
to  be  heard  on  the  pleadings  filed  herein,  exhibits,  testimony  and 
evidence  adduced,  and  also  upon  the  waiver  filed  herein  and  consent 
of  all  the  parties,  admitting  the  allegations  of  the  petition  to  be  , 
true,  and  consenting  that  the  court  enter  a  decree  in  accordance 
with  the  prayer  of  said  petition,  and  upon  due  consideration  thereof 
and  being  fully  advised  in  the  premises,  the  court  finds  that  all 
the  parties  hereto  have  entered  their  appearance  herein,  and  have 
consented  to  the  prayer  of  the  petition,  and  that  the  allegations  of 
the   petition    are    true. 

The  court  further  finds  that  the  plaintiff,  F.  M.,  inherited  the 
life  estate  in  the  said  real  estate  in  the  petition  described  under 
the  said  will  of  his  said  father,  and  that  he  conveyed  the  same  to  the 
plaintiff,  T.  J.  M.,  and  that  she  is  now  the  owner  thereof;  and  the 
court  further  finds  that  the  plaintiff,  M.  D.  F.,  and  the  defendant, 
M.  M.  P.,  are  his  heirs  in  tail  to  said  real  estate,  and  that  both 
of  said  children  have  arrived  at  the  age  of  majority;  that  the  plaintiff, 
W.  H.  F.,  is  the  husband  of  the  plaintiff  M.  D.  F.;  that  the  defendant, 
L.  R.  P.,  is  the  husband  of  the  defendant  M.  M.  P.;  that  the  plaintiff, 
F.  M.,  is  the  husband  of  the  plaintiff,  T.  J.  M.,  and  that  the  plaintiff, 
T.  J.  M.,  has  an  interest  in  said  premises  as  tenant  for  life,  all 
as    in    tho   petition   set  forth. 

And  it  having  been  made  to  appear  to  the  court  by  the  evidence 
adduced  that  the  sale  of  said  real  estate  as  asked  in  the  petition, 
would  be  for  the  benefit  of  the  said  plaintiffs,  and  would  do  no 
substantial    injury    to   the   defendants,   the   heirs   in   tail,   nor   to   any 


191  FORMS. 

other  of  said  defendants,  or  to  any  of  said  plaintiffs,  it  is  hereby 
ordered  and  decreed  by  the  court  that  said  real  estate,  described 
in  the  petition,  be  sold,  free  from  all  entailments,  limitations,  or 
conditions,  in  the  manner  as  by  law  provided  in  case  of  sales  upon 
execution,  by  G.  J.  K.,  sheriff  of  this  county,  who  is  hereby  appointed 
to  make  said  sale  with  all  the  power  possessed  by  sheriffs  and  master 
commissioners  in  such  cases,  and  that  an  order  of  sale  issue  there- 
for to  the  said  G.  J.  K.,  directing  him  to  appraise,  advertise  and 
sell  said  premises  as  in  sales  upon  execution,  provided,  however, 
that  at  any  time  before  sale  at  public  auction,  the  said  premises 
may  be  sold  at  private  sale,  for  cash,  at  a  sum  not  less  than  the 
appraised  value  thereof,  and  a  return  of  said  sale,  with  the  proceeds 
thereof,  shall  be  made  to  this  court  for  further  order  herein. 

No,  73.     Order  of  sale. 

The  State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

Whereas,    at    a    term    of    the    Court    of    Common    Pleas,    held    at 

in   and    for  said   county,   on    the  day   of   , 

19 ,    in    the    cause    of    T.    J.    M.,    et    al,    plaintiffs,     and    M.    M.    P. 

et  al,  defendants,  it  was  ordered,  adjudged  and  decreed  as  fol- 
lows, to-wit: 

That  said  real  estate  described  in  the  petition  be  sold,  free 
from  all  entailments,  limitations  or  conditions  in  the  manner  as  by  law 
provided  in  case  of  sales  upon  execution,  by  G.  J.  K.,  sheriff  of  this 
county,  who  is  hereby  appointed  to  make  said  sale,  with  all  the  power 
possessed  by  sheriffs  and  master  commissioners  in  such  cases,  and 
that  an  order  of  sale  issue  therefor  to  said  G.  J.  K.,  directing  him 
to  appraise,  advertise  and  sell  said  premises  as  in  sales  upon  ex- 
ecution, provided,  however,  that  at  any  time  before  sale  at  public 
auction,  the  said  premises  may  be  sold  at  private  sale,  for  cash,  at 
a  sum  not  less  than  the  appraised  value  thereof,  and  a  return  of 
said  sale  with  the  proceedings  thereof  shall  be  made  to  this  court 
for  further  order  herein.      (Here  give  description  of  real  estate.) 

We  Therefore  Command  You,  That  you  proceed  to  carry  said 
order,  judgment  and  decree  into  execution  agreeably  to  the  tenor 
thereof,  and  that  you  expose  to  sale  the  above  described  real  estate, 
under  the  statute  regulating  sales  upon  execution,  and  that  you 
apply  the  proceeds  of  such  sale  in  satisfaction  of  said  judgment  and 
decree,  with  costs  and  interest,  as  specified  therein;  and  that  you 
make  report  of  your  proceedings  herein,  to  our  Court  of  Common 
Pleas  within  sixty  days  from  the  date  thereof,  and  bring  this  order 
with  you.  And  I  certify  under  seal  of  court  that  the  description 
of  property  herein  is  correctly  copied  from  the  records  of  this  case 
on   file   in    this   office. 

Witness   my   signature    as    Clerk    of   our   said   Court   of    Common 

Pleas,  and  the  seal  of  said  Court,  at  ,  this  day  of 

■ ,    19 .  ,  Clerk   of  Courts. 


MEKWINB    ON    REAl,    ACTIONS.  192 

No.  74.     Sheriff' s  return  of  his  proceedings  under  the  writ. 

In  obedience  to  the  command  of  the  order  of  sale  hereto  annexed, 

I    did,    on    the day    of    ,    19 ,    summon    , 

and    ,    three    disinterested    freeholders,    residents    of 

said  county,  who  are  by  me  duly  sworn  to  impartially  appraise  the 
lands  and  tenements  therein  described,  upon  actual  view,  and  after- 
wards, on  the  day  of  ,  19 ,  said  appraisers  re- 
turned to  me,  under  their  hands  and  seals,  that  they  did,  upon 
actual   view   of    the    premises,    estimate    and    impartially    appraise   the 

real   value   in   money  of  the   same  at  $ .     A  certified   copy   of 

said    appraisal    I    forthwith    deposited    in    the    office    of    the    Clerk    of 

the   Court   of   Common    Pleas   of   said   County.      And   on   the   

day   of  ,    19 ,   came   the   City   of  ,    Ohio,    who    bid 

for   the   same  the  sum   of   $ ,   the  said    sum   being   more   than 

the   appraised   value    thereof,   and    said   city    of   ,    Ohio,    being 

the  highest  and  best  bidder  therefor,  I  then  and  there  struck  off 
said  lands  and  tenements  to  it  for  said  sum  of  $ ,  in  accord- 
ance to  the  order  of  the  court  herein  directing  me  to  sell  said 
premises  at  public  sale  at  no   less   than   the  appraised   value  thereof. 

G.  J.   K., 

Sheriff. 

No.  75.     The  order  for  appraisement. 

The  State  of  Ohio,  County,   ss. : 

To   ,  and  ,   freeholders   of  County, 

State   of   Ohio. 

Whereas,  on   the  day  of  ,   19 ,   T.   J.   M.,   et 

al,    filed    in    the    Court    of    Common    Pleas    of    said    County, 

Ohio,  a  petition  against  M.  M.  P.  et  al.  praying  said  court  for  an 
order   to   sell    certain    real   estate   described    in   said    order,   situate   in 

the  County  of  ,  and  State  of  Ohio,  and  bounded  and  described 

as   follows:       (Here   describe   real   estate.) 

And    Whereas,    afterward,    to-wit:    at   the   term    of   said 

court,    19 ,    such    proceedings    were    had    upon    said    petition    by 

said    court,    that   the   sheriff   of  County,    was   ordered    to   sell 

said  real  estate,  as  upon  judgment  and  execution  at  law.  Now  there- 
fore,   according    to    the    statute    in    such    cases    made    and    provided,    I 

do    hereby    call    and    appoint    you    the    said    ,    and 

,  and  request  and  do  require  you,  on  oath,  forthwith   to  view, 

estimate  and  appraise  the  real  value  of  said  premises,  in  money, 
and   return  to  me  your  doings,   under  your  hands  and  seals. 

Given   under  my   hand   and   seal,  this day   of   , 

19 •  , 

Sheriff. 


193 


FORMS. 


No.  76.     The  oath  of  appraisers  and  the  appraisement. 

State   of  Ohio,  County,   ss.: 

Personally    appeared    before    me,    G.    J.    K.,    sheriff    of    

County,  aforesaid,  the  above  named  ,  and  , 

appraisers    aforesaid,     who     are     judicious,     disinterested     freeholders 

and    citizens    of    said   County    of   ,    and    who    were    personally 

sworn  according  to  law  to  discharge  the   duties  of  said  appointment. 

Witness  my  hand  and  seal,  this  day  of  ,  19 . 


Sheriff. 

To    (1.    J.    A".,    Sheriff    of    County,   Ohio,   as   aforesaid: 

In  pursuance  of  the  foregoing  appointment,  we  have  proceeded 
to  view  the  real  estate  and  premises  above  described,  and  from  actual 
view  of  the  same,  we  do  estimate  the  real  value  thereof  in  money 
to   be   $ . 

Given  under  our  hands  and  seals   this  dav  of  


19         •  —  [seal.] 

[seal.] 

■  [seal.] 

No.  77.     The  order  of  the  court  appointing  trustees  and  fixing 
bond. 

Court  of  Common   Pleas,  County,  Ohio. 

T.  J.  M.,   F.   J.   M„  M.   D.   F. 
and   W.   H.   F., 

Plaintiffs, 

vs-  No.   . 

M.  M.   P.  and  L.  R.   P., 

Defendants. 

This  day  came  the  parties  and  thereupon  this  cause  came  on 
to  be  heard  on  motion  for  the  appointment  of  trustees  herein,  as 
provided  by  statute. 

On  consideration  whereof,  and  being  fully  advised  in  the  pre- 
mises, the  court  does  hereby  appoint  T.  J.  M.  and  M.  M.  P.,  trustees, 
for  all  persons  who  are  now,  or  may  hereafter  be  interested  in  the 
premises  described  in  the  petition,  who,  before  entering  upon  their 
duties  as  such  trustees,  shall  give  an  undertaking  to  the  approval 
of  the  court  for  the  faithful  performance  thereof,  in  the  sum  of 
$ . 

And  said  trustees  are  made  parties  hereto  with  leave  to  answer 
instanter,   and   which   is  accordingly  done. 

No.  78.    The  bond  of  trustees. 

Whereas.  T.   J.   M.   and   M.   M.   P.  were,   on  the  day  of 

.    19 ,    duly    appointed    trustees    in    the    case    of    T.    J.    M., 


MERWINE   ON    REAL   ACTIONS.  194 

et  al,  plaintiffs,  vs.  M.   M.  P.,  et  al,  defendants,  now  pending  in  the 

Court  of  Common  Pleas,  County,  Ohio. 

Now,  therefore,  we,  T.  J.  M.  and  M.  M.  P,  as  principal,  and 
M.  D.  F.  and  F.  M.  as  sureties,  jointly  and  severally  obligate  our- 
selves and  undertake  to  the  State  of  Ohio,  and  to  the  said  plaintiffs 
and  defendants  and   to  all  to   whom   it  may  concern,   in  the  sum  of 

dollars    ($ )    that   the    said    T.    J.    M.    and    M.    M.   P. 

shall    faithfully    discharge    the    obligations,  and    duties    of    trustees   in 
said  action,  and  obey  the  orders  of  the  court  therein. 

T.  J.  M. 
M.  M.   P. 
M.   D.   F.  and 
F.   M. 

No.  79.     The  official  oath  of  trustees. 

State  of  Ohio,  County,   ss. : 

F.  J.  M.  and  M.  M.  P.  make  solemn  oath  that  they  will  faithfully 
perform  the  duties  of  trustees  in  the  case  of  T.  J.  M.,  et  al,  plaintiffs, 
vs.  M.  M.  P.,  et  al,  defendants,  Case  No.  ,  Court  of  Common  Pleas, 

County,  Ohio.  T.    J.    M.    [seal.] 

M.   M.   P.    [seal.] 

I   certify   that   the  above   was   signed   by   T.   J.    M.   and   M.   M.   P. 

in  my  presence  and  sworn  to  before  me  this  day  of  , 

19 ,  , 

Clerk   of   Courts. 

I  certify  under  seal,  that  in  obedience  to  the  order  of  the  court, 
I  approve  the  above  undertaking  and  surety  or  sureties  therein,  dated 
this  day   of  ,    19 . 


October  26,   1904.  Clerk   of  Courts. 

No.  80.     Answer  of  trustees. 

Court  of  Common   Pleas,  County,  Ohio. 

T.  J.   M.,   F.   J.   M.,  M.   D.  F. 
and   W.   H.   F., 

Plaintiffs, 

vs.  No.   . 

M.   M.   P.   and  L.  R.   P., 
Defendants. 

Now  come  T.  J.  M.  and  M.  M.  P.  heretofore  j;ppointed  trustees 
herein,  and  for  their  answer  herein  say  that  as  such  trustees  and 
representatives  of  all  the  persons  and  parties  interested  in  the  sub- 
ject matter  of  this  suit,  including  as  well  those  now  living  as  those 
who  may  hereafter  come  into  life,  if  any  such  theie  may  be,  and 
ask  the  court  to  protect  the  interests  of  all  of  such  persons  for 
whom  these  answering  defendants  are  trustees  by  such  orders  and 
decrees   as      shall    fully   protect   all    the   rights   and   interests   of  any 


195  FORMS. 

such   defendants,   and   of   all   persons  who   are  now    in   being  or   may 
hereafter    come    into    being,    who    may    be    interested    in    the    subject 
matter  of   this  action   by   reason  of  said  last  will   and  testament  and 
by  reason  of  the  matters  set  out  in  the  petition  herein. 
Answer  should  be  verified  in  the  ordinary   way. 

No.  81.     The   order   confirming    appraisement   and   sale,    and 
order  for  deed  and  distribution  of  proceeds. 

Court  of  Common   Pleas    County,  Ohio. 

T.  J.  M.,   F.   J.   M.,  M.   D.   F. 
and   W.   H.   F., 

Plaintiffs, 

vs.  No.   . 

M.  M.   P.  and   L.  R.   P., 
Defendants. 

This    day    came    the    parties   and    thereupon    this    cause    came    on 

to   be   heard   on   the    return   of   G.    J.    K.,    sheriff  of  County, 

Ohio,  heretofore  appointed  to  make  the  sale  of  the  premises  in  this 
cause  ordered  to  be  sold,  with  his  report  of  his  proceedings  in  the 
sale  under  said  writ. 

And  the  court  having  carefully  examined  said  proceedings  and 
being  satisfied  that  the  said  appraisement  and  the  said  sale  have 
in  all  respects  been  fairly  and  legally  made  and  in  conformity  to 
the  orders  of  this  court,  and  that  the  appraised  value  of  said  real 
estate  is  the  fair  and  true  value  thereof,  and  that  the  price  obtained 
therefor  by  said  sale  is  the  reasonable  value  of  the  said  real  estate 
sold,  do  approve  and  confirm  the  same  in  all  respects,  and  order 
the  said  J.  G.  K.  as  sheriff  of  Countyr,  to  make  to  the  pur- 
chaser a  deed  in  fee  simple  for  the  premises  so  sold. 

It  is  further  ordered  by  the  court  that  said  sheriff  pay  the 
costs  as  hereinafter  ordered,  that  he  pay  the  balance  of  said 
proceeds  to  said  trustees,  T.  J.  M.  and  M.  M.  P.,  and  that  the  pro- 
ceeds   of    said    sale,    after    payment    of    the    costs    of    this    proceeding, 

to-wit:    the   sum    of    $ ,    including  a   fee   of   $ allowed 

to    plaintiff    for    services    herein    on    behalf    of    all    the    parties,    and 

also   including   $ ,    cost   of   the   insurance,   and    $ ,    cost 

of  survey,  be  invested  in  bonds  secured  by  mortgage  on  unincumbered 

real    estate    situated    in    County,    Ohio,    of    double    the    value 

of  the  money  secured  thereby,  exclusive  of  buildings  and  other  im- 
provements, and  of  timber,  mines,  and  minerals;  or,  be  re-invested 
in  other  real  estate  within  this  State,  as  provided  by  law.  The  court 
hereby  ratifies  and  approves  the  former  appointment  herein  made 
of  trustees  for  such  purpose,  and  hereby  re-appoints  the  same  trustees, 
and  the  court  finds  that  the  said  trustees  have  given  an  undertaking 
to   the   approval    of   the   court   for   the    faithful    performance  of   their 

duties,   in  the  sum  of  $ ,  and  the  court  does  here  now  approve 

said   undertaking. 


MERWINE   ON    REAL    ACTIONS.  196 

No.  82.     The  sheriff's  deed. 

To  all  Persons  to  whom  these  presents  shall  come.  Greeting: 

Whereas,    on    the    day    of    ,    19 ,    T.    J.    M., 

et   al,   plaintiffs,  filed  their  petition  and  then  and   thereby  commenced 

a    civil    action    in    the    Court    of    Common    Pleas    of   County, 

Ohio,  against  M.  M.  P.,  et  al,  defendants,  and  numbered  on  the  dockets 

of    said    court    as    case    No.    ,    praying    therein,    among    other 

things,  lor  the  sale  of  certain  real  estate  in  said  petition  and  here- 
inafter   described;    and 

Whereas,    such    proceedings    were    had    in    said    action,    that    by 

the    consideration    and    judgment   of   said    court   on   the  day 

of   ,    19 ,    in    the   term,    19 ,    G.    J.    K.,    sheriff 

of  County,  Ohio,  was  ordered  to  appraise,  advertise  and  sell 

said  real  estate,  hereinafter  described,  free  from  all  entailments, 
limitations  or  conditions  in  manner  as  by  law  provided  for  sales 
upon  execution,  provided,  however,  that  at  any  time  before  sale 
at  public  auction,  the  said  premises  may  be  sold  at  private  sale, 
for  cash,  at  a  sum  not  less  than  the  appraised  value  thereof;    and 

Whereas,    afterwards    on    the   day    of   ,    19 , 

in  pursuance  of  said  order  and  judgment  of  said  court,  and  founded 
thereon,  an  order  of  sale  issued  from  said  court  in  said  cause,  directed 

to    G.    J.    K.,    sheriff    of   County,    Ohio,    commanding    him    to 

execute  said  order  and  in  all  things  to  be  governed  by  the  provisions 
of  the  statute  in  such  cases  made  and  provided,  and  of  said  order, 
with  his   proceedings   thereon,   he  should  make   due   return;    and 

Whereas,    I,    G.    J.    K.,    sheriff    as    aforesaid,    having    caused    said 

premises  to  be  appraised  by  three  disinterested  freeholders  of  

County,  Ohio,  and  they,  having  appraised  said  premises  at  $ , 

a    copy    of    which    appraisement    was    duly    filed    in    the    office    of    the 

clerk    of   said    courts,    and   thereupon   came   ,   and   having   bid 

for  said  premises  the  sum  of  $ ,  which  sum  being  more  than 

the  appraised  value  thereof,  I  then  and  there  sold  said  premises  to 
the  said  ,  the  purchaser,   for  the  sum   above  mentioned;    and 

Whereas,    the   said    court,    at    its   Term,    19 ,    having 

examined  the  proceedings  aforesaid  in  the  premises  under  said  order 
of  sale,  and  being  satisfied  that  the  sale  aforesaid  has  been  made 
in  all  respects  in  pursuance  to  said  judgment  and  order  of  sale, 
and  in  accordance  with  the  provisions  and  requirements  of  the 
statute  regulating  such  sales,  did  order  that  such  sale  should  be 
confirmed,  and  thai  the  said  sheriff  of  said  county  should  convey 
the   said    real   estate,    by    deed    in    fee   simple,   to   the    purchaser, 


Now,    know    ye,    that     I.    the    said    0.    J.    K.,    sheriff    of 


County,  Ohio,  as  aforesaid,  by  virtue  of  said  judgment,  order  of  sale, 
sale  and  confirmation,  and  the  statute  for  such  cases  made  and  pro- 
vided,  and    for   and    in    consideration   of   the    premises    herein   and   the 

sum    of    $ ,    which    I    acknowledge    to    have    received    from    the 

purchaser    above    named,    do    hereby    grant,    sell    and    convey    unto    it, 


197 


FORMS. 


the   said   ,    its    successors   and    assigns    forever,    the    following 

real   estate:       (Here   describe   it). 

To    Have    and    to    Hold    the    premises    aforesaid    unto    the    said 

,   its  successors  and  assigns   forever,  as   fully   and  completely 

as   I,   the  said   G.    J.   K.,   sheriff  of  County,    Ohio,   by    virtue 

of  said  judgment  and  order  of  sale,  sale  and  confirmation,  and  of 
the  statute  made  and  provided  for  such  cases,  might  or  should  sell 
and  convey  the  same. 

In    Witness    Whereof,    I    have    hereunto    set   my    hand    and    seal 

this  day  of  ,  19 .  G.  J.  K., 

Sheriff,  Coicnty,  Ohio. 

Signed,  sealed  and  acknowledged  in  presence  of 


State  of  Ohio,  County,   ss.: 

Personally  appeared  before  me,   a   Notary  Public   within  and   for 

said   county,   the   above   named   G.    J.   K.,    sheriff  of   County, 

Ohio,  the  grantor  in  the  above  deed  of  conveyance,  who  acknowl- 
edged the  signing  and  sealing  of  the  same  to  be  his  voluntary  act 
and   deed   for   the   uses  and   purposes   therein  mentioned. 

In  Witness  Whereof.  I  have  hereunto  set  my  hand  and  seal 
this  day    of  19 . 


[seal.] 


Notary  Public,   Co-unty.    Ohio. 

No.  83.     The  order  approving  proceedings  and  ordering  sheriff 
to  turn  over  money  to  trustees. 

Court  of  Common  Pleas,  County,  Ohio. 

T.  J.   M.,   F.   J.   M.,  M.   D.   F. 
and  W.  H.  F., 

Plaintiffs, 

vs-  No.   . 

M.  M.  P.  and  L.  R.  P., 

Defendants. 

This  day  came  the  parties  and  thereupon  this  cause  came  on 
for    further    proceedings   herein. 

On  consideration  whereof,  and  being  fully  advised  in  the  prem- 
ises, and  upon  careful  examination  of  all  the  proceedings  hereto- 
fore and  herein,  the  court  finds  that  said  proceedings  have  been 
had  in  full  conformity  to  the  statutes  for  such  cases  made  and 
provided,  and  that  all  the  parties  hereto  are  within  the  jurisdiction 
of  the  court  herein:  that  all  the  parties,  both  plaintiffs  and  defendants, 
have  attained  their  majority,  and  that  all  thereof  have  entered  their 
appearance  herein:  that  sale  has  been  made  of  said  premises  ac- 
cording to  law,  and  that  the  same  has  been  duly  and  legally  sold, 
and   that  a   deed  therefor  has  been  made   to   said  by  G.   J. 


MERWINE    ON    REAL    ACTIONS. 


198 


K.,  sheriff  of  this  county,  who  was  heretofore  authorized  to  make 
said  sale;  that  the  money  therefor  has  been  duly  paid  to  the  said 
sheriff;  and  that  trustees  have  been  duly  appointed  herein  as  pro- 
vided by  law,  and  that  said  trustees  have  given  a  bond  to  the  approval 
of   the   court. 

The  court  further  finds  that  said  trustees  have  filed  their  answer 
herein  on  behalf  of  said  trust  and  on  behalf  of  all  of  said  persons 
now  or  hereafter  to  become  interested  therein;  and  the  court  does 
therefore  approve  and  confirm  all  of  said  proceedings  and  said  ap- 
pointment of  said  trustees,  and  does  here  now  order  that  the  said 
G.  J.  K.,  as  sheriff  by  whom  this  sale  in  this  cause  was  made,  turn 
over  to  these  trustees  all  money  in  his  possession  arising  from  said 
sale,  after  deducting  therefrom  the  costs  and  expenses  as  heretofore 
ordered 

Note. — For  forms  for  manner  of  investing  proceeds  of  such  sale 
and  for  form  or  order  of  court  approving  same,  see  Nos.  91  and 
92,  hereinafter. 


OTHER  FORMS  OF  PROCEDURE  IN  SALE  OF  ENTAILED 

ESTATES. 


Form's. 

84.  Another  form  for  petition  in 
the  sale  of  entailed  estates. 
The  answer  under  said  petition. 
The  decree  and  order  of  sale  of 
premises  and  appointment 
of  trustees. 
The  order  of  sale  and  the  re- 
port of  sale. 

88.  The  acceptance  of  appointment. 

89.  The  bond  of  trustee. 


85 
86 


87. 


Forms. 

90.  The  entry  confirming  sale  and 

ordering     trustee     to     pur- 
chase other  real   estate. 

91.  The  report  of  trustee  as  to  in- 

vestment. 

92.  The   order   of    court   approving 

investment. 

93.  Another  form  for  a  petition  by 

tenant  for   life  for  sale  of 
estate. 


No.  84.     Another  form  for  petition. 


Court  of  Common  Pleas, 


R.   S. 


Plaintiff, 
vs. 
G.    M.    S.    and    C.    E.    S.,    minors,    J. 
E.  S.  as  guardian  of  the  estates  of 
said   G.   M.   S.   and   C.    E.   S.,   A.    R., 
J.   M.   K.   and  C.   H.   K. 
Defendants, 


County,  Ohio. 


No. 


day    of 


19- 


M.    A.    K., 


On    or    about    the    

late  of  said County,  Ohio,  and  who  was  the  mother  of  plaintiff, 

died,  leaving  her  last  will   and   testament,   which   was    duly   admitted 


199 


FORMS. 


to  probate  and   record   by  'the   Probate   Court  of  said  county,   and  is 

recorded    in    the    Will    Records   of   said    Probate   Court,    in    Vol.    , 

at  page  . 

By    item   of   said    will,    a    true   copy   of   which   is   hereto 

attached  marked  "Exhibit  O,"   and   by   reference  made  a  part  hereof, 
said    M.    A.    K.    gave   and    devised    the   following   real    estate,    situated 

in  the  County  of  ,  State  of  Ohio,  and  in  the  City  of  , 

and  bounded  and  described  as  follows:  (Here  insert  description 
of  real  estate). 

To  plaintiff  here  "for  and  during  her  natural  life,  and  at  her 
death,  then  the  same  to  go  to  the  heirs  of  her  body  in  fee  simple." 
And    no    other    disposition    was   made    of   said    premises. 

The  defendant,  G.  M.   S.,  a  daughter  who  will  be  years 

of    age    on    ,    19 ,    and    the    defendant,    C.    E.    S.,    a    son, 

who   will   be  years   of  age  on  the  day  of  , 

19 •    are    the    only    persons    in    being,    who    are    the    children    or 

descendants  of  plaintiff,  and  as  such  are  seized  of  an  estate  in 
remainder    in    said    real    estate. 

J.    E.    S.,    who    is    the    husband    of   plaintiff,    and    also    the   father 

of    G.    M.    S.    and    C.    E.    S.,    was,    on    or    about    the    day    of 

.    19 ,    by    the    Probate    Court    of    County,    Ohio, 

wherein  they  resided,  duly  and  legally  appointed  as  guardian  of  the 
estates,  respectively,  of  their  said  children,  is  duly  qualified  therefor, 
and   is  now   lawfully  acting  as  such  guardian. 

The  defendants,  A.  R.,  J.  M.  K.  and  C.  H.  K.,  and  the  plaintiff, 
are  the  only  living  children  of  said  M.  A.  K.,  deceased,  and  are 
her  only  heirs  at  law. 

On   said   real   estate   described   there   is   erected    a   brick   house   of 

rooms  and  a   wooden   stable;    the  same   is   worth   $ , 

but    can    be    rented    for   no    more    than    $ per   month,    which, 

after  paying  taxes,  insurance  and  repairs,  makes  the  same  a  very 
poor    investment. 

Plaintiff's  interest  in  said  premises  is  an  estate  for  her  natural 
life;  she  is  still  the  owner  of  said  life  estate,  and  is  now  in  possession 
of  the  property;  and  it  would  be  for  her  advantage,  and  do  no 
substantial  injury  to  any  of  the  others  in  interest,  if  the  property 
were  sold  and  the  proceeds  invested  under  the  order  of  this  court, 
as  provided  by  statutes. 

Wherefore,  plaintiff  prays  that  the  court  direct  a  sale  of  said 
real  estate  to  be  made  in  fee  simple,  and  the  manner  thereof,  and 
appoint  some  suitable  person  to  make  the  same;  and  grant  all 
other    proper   relief   in    the   premises. 


Attorneys   for  Plaintiff. 
State   of  Ohio,  County,   ss.: 

R.  S.,  the  plaintiff  in  the  above  entitled  cause,  being  first  duly 
sworn,  says  that  the  statements  made  and  allegations  contained  in 
her  foregoing  petition  are  true,  as  she  believes. 


MERWINE    ON    REAL    ACTIONS.  200 

Sworn  to  before  me  by  R.   S.  and  by  her  subscribed  in  my  pres- 
ence,  this   day    of   ,    19 . 


Notary  Public  in  and  for  County,  Ohio. 

No.  85.     The  answer  of  defendants  consenting  to  sale. 

Court  of  Common   Pleas,  County,   Ohio. 

R.   S.,   Plaintiff, 

vs.  No.   . 

G.  M.  S.  and  C.  E.  S.,  minors,  J. 
E.  S.  as  guardian  of  the  estates  of 
said  G.  M.  S.  and  C.  E.  S.,  A.  R., 
J.  M.  K.  and  C.  H.  K., 
Defendants. 

We,  the  undersigned,  the  defendants  in  the  above  entitled  cause, 
admit  the  allegations  of  the  petition  in  this  case,  voluntarily  appear 
in  the  same,  and  consent  to  the  sale  of  the  real  estate  in  said 
petition  described,  as  therein  prayed  for.  And  this  appearance  and 
consent  by  J.  E.  S.,  as  guardian  aforesaid,  is  on  behalf  of  his  said 
two  wards.  , 


No.  86.     The  decree  and  order  of  sale  of  premises  and  appoint- 
ment of  trustees. 

Court  of  Common   Pleas,  County,  Ohio. 

R.   S.,     Plaintiff, 

vs.  No.  . 

G.  M.  S.  and  C.  E.  S.,  minors,  J. 
E.  S.  as  guardian  of  the  estates  of 
said  G.  M.  S.  and  C.  E.  S.,  A.  R., 
J.  M.  K.  and  C.  H.  K., 
Defendants. 
This    day    this    cause    came    on    to   be   heard,    having    been    duly 
assigned   for   trial,   upon   the  petition   of   plaintiff,    the  answer  of   the 
defendants,    and    the    evidence.      And    the    court    upon    due    considera- 
tion   thereof    finds:      That    the    allegations    of    the    petition    are    true, 
and   that  the   prayer  therein   should   be  granted;    that  the   defendants, 

G.  M.  S.  and  C.  E.   E.,  minors  over  years  of  age,  have  both 

been  duly  and  legally  served  with  summons;  that  each  and  every 
one  of  the  defendants  herein  have  also  entered  their  appearance  in 
this  cause,  have  filed  their  answer  in  the  same,  admitting  the  alle- 
gations of  the  petition  to  be  true,  and  have  each  duly  appeared  and 
consented  in  writing  to  the  sale  of  the  premises  in  the  petition  de- 
scribed as  therein  prayed  for. 


201  FORMS. 

It  is  further  found  by  the  court  that  the  sale  of  said  real  estate 
would  be  for  the  benefit  of  plaintiff,  the  said  tenant  for  life,  and 
do  no  substantial  injury  to  the  defendants  holding  the  estate  in 
remainder,    reversion  or   expectancy. 

It  is,  therefore,  directed,  ordered,  adjudged  and  decreed,  by 
the  court,  that  the  said  real  estate,  to-wit:  (Here  insert  description 
of   real   estate),   be  sold    for   cash  at   private   sale,    for  the   best   price 

obtainable,  but  in  no  event  for  less  than  $ ,  and  in  fee  simple 

freed  of  the  several  interests  of  all  the  parties  having  any  interest 
therein,  and  that  the  proceeds  arising  from  the  sale  of  said  real 
estate  be  promptly  reinvested  in  other  good  and  substantial  real 
estate  located  within  this  State,  the  title  thereto  being  taken  to  R.  S. 
for  and  during  her  natural  life,  and  at  her  death  then  to  the  heirs 
of  her  body  in  fee  simple. 

And  J.  E.  S.  is  hereby  appointed  by  the  court  as  a  suitable 
person  and  trustee  to  make  such  sale  and  reinvest  the  said  proceeds 
in  such  other  real  estate  as  hereinabove  provided,  subject  to  the 
approval  and  confirmation  of  this  court;  and  before  entering  upon 
the  discharge  of  his  duties  in  the  premises,  said  J.  E.  S.  is  required 
to  give  an  undertaking  to  the  State  of  Ohio,  with  good  and  sufficient 
surety    thereon,    for    the    benefit    of    the    plaintiff    and    defendants,    in 

the  sum    of   $ ,   conditioned    for   the   faithful   discharge   of   his 

duties   under   this   appointment,   and    he   shall    report   his    proceedings 

as  to  the  sale  of  said  premises  to  this  court  within  days  for 

future  order. 

And  thereupon  came  the  said  J.  E.  S.  and  filed  in  this  court 
his   written   acceptance    of   said   appointment,    and   tendered    and   filed 

his  bond   as   required,   with   The  Company   as   surety,   which 

bond  is  hereby  accepted  and  approved  by  the  court,  and  the  clerk 
of  this  court  is  directed  to  issue  an  order  of  sale  to  said  J.  E.  S., 
commanding  him  to  sell  said  real  estate  as  hereinabove  provided. 

No.  87.     The  order  of  sale  and  the  report  of  same. 

Court  of  Common   Pleas,  County,  Ohio. 

R.   S.,    Plaintiff, 

vs.  No.   . 

G.  M.  S.  and  C.  E.  S.,  minors,  J. 
E.  S.  as  guardian  of  the  estates  of 
said  G.  M.  S.  and  C.  E.  S.,  A.  R., 
J.  M.  K.  and  C.  H.  K., 
Defendants. 

The  State  of  Ohio,  County,  ss.: 

To  J.   E.   8.,   Greeting: 

Whereas,   at   the   term    of   the   Court   of   Common   Pleas 

of  County,  held  at  ,  in  and  for  said  county,  on  the 

day    of    ,    A.    D.,    one    thousand    nine    hundred    and 

,  in  the  cause  of  R.  S.,  plaintiff,  vs.  G.   M.   S.  et  al,  defend- 


MEKWINE    ON    liKAL    ACTIONS.  202 

ants,  being  cause  No.  ,   the  said   court  entered  a   decree   and 

order  as   follows,  to-wit: 

"It  is  therefore  directed,  ordered,  adjudged  and  decreed,  by 
the  court,  that  said  real  estate,  to-wit:  (Here  insert  description 
of    real   estate)    be   sold   for   cash   at   private    sale,    for   the   best   price 

obtainable,  but  in  no  event  for  less  than  $ ,  and  in  fee  simple 

freed  of  the  several  interests  of  all  the  parties  having  any  interest 
therein,  and  that  the  proceeds  arising  from  the  sale  of  said  real 
estate  be  promptly  reinvested  in  other  good  and  substantial  real  estate 
located  within  this  State,  the  title  thereto  being  taken  to  R.  S.  for 
and  during  her  natural  life,  and  at  her  death  then  to  the  heirs  of 
her    body    in    fee    simple. 

"And  J.  E.  S.  is  hereby  appointed  by  the  court  as  a  suitable 
person  and  trustee  to  make  such  sale  and  reinvest  the  said  proceeds 
in  such  other  real  estate  as  hereinabove  provided,  subject  to  the  ap- 
proval and  confirmation  of  this  court;  and  before  entering  upon  the 
discharge  of  his  duties  in  the  premises,  said  J.  E.  S.  is  required  to 
give  an  undertaking  to  the  State  of  Ohio,  with  good  and  sufficient 
surety    thereon,    for    the    benefit    of    the    plaintiff    and    defendants,    in 

the    sum   of   $ ,    conditioned    for   the   faithful    discharge   of   his 

duties    under   this    appointment,    and    he    shall    report   his    proceedings 

as   to   the   sale   of   said   premises   to   this    court   within    days 

for  further  order." 

We  therefore  command  you,  that  you  proceed  to  carry  said 
order,  judgment,  and  decree  into  execution  agreeable  to  the  tenor 
thereof. 

And  I  certify  under  seal  of  court  that  the  description  of  the 
property  herein  is  correctly  copied  from  the  records  of  this  case 
on   file   in   this  office. 

Witness   my  hand  as  clerk   of  our  said   Court  of  Common  Pleas, 

and  the  seal  of  said  court,  at  ,  this  day  of  , 

A.   D.   19 . 

The   Report   of    Sale. 

In   obedience   to   the  order  of   sale  hereto   annexed,    I   did   on   the 
day    of    ,    19 ,    after    due    and    diligent    effort    to 


obtain    a    better    price    therefor,    sell    said    real    estate    in    said    order 

of   sale    described,   at    private   sale   to   ,    for   the   cash    sum    of 

$ ,    subject    to    the    approval    and    confirmation    of    this    court, 

which   sum    is   the   best   price   obtainable   therefor  and  the   reasonable 
value  of  the  same.  • 

The   State   of   Ohio,   County,   ss.: 

J.  E.  S.,  being  first  duly  sworn,  says  that  he  is  the  person  here- 
tofore appointed  and  qualified  by  the  court,  in  this  cause,  to  make 
the  sale  therein  ordered,  and  that  the  facts  stated  in  his  foregoing 
report   are   true.  • 

Sworn  to  before  me  by  J.  E.  S.(  and  by  him  subscribed  in  my 
presence,    this  day   of  ,   A.    D.,    19 . 


203  FORiMS. 

No.  88.     The  acceptance  of  appointment. 

Court  of  Common   Pleas,  County,  Ohio. 

R.  S.,    Plaintiff, 

vs.  No>   m 

G.  M.  S.  and  C.  E.  S.,  minors,  J. 
E.  S.  as  guardian  of  the  estates  of 
said  G.  M.  S.  and  C.  E.  S.(  A.  R., 
J.  M.   K.  and  C.   H.  K., 
Defendants. 

Now  comes  J.  E.  S.,  heretofore  appointed  by  the  court  in  this 
cause  as  a  suitable  person  and  trustee  to  make  the  sale  and  reinvest 
the  proceeds  heretofore  ordered  by  this  court,  and  hereby  accepts 
the  said  appointment,  and  tenders  herewith  his  bond  for  the  faithful 
discharge  of  his  duties,  with  The  as  surety. 


No.  89.     The  bond  of  trustee. 

Court  of  Common  Pleas,  — '■ County,  Ohio. 

R.  S.,   Plaintiff, 

vs.  No.   . 

G.  M.  S.  and  C.  E.  S.,  minors,  J. 
E.  S.  as  guardian  of  the  estates  of 
said  G.  M.  S.  and  C.  E.  S.,  A.  R., 
J.   M.   K.  and  C.   H.  K., 
Defendants. 

We,   J.    E.    S..   of   the   City   of  ,    County   of   and 

State   of    Ohio,    as    principal,    and   The    ,    as    surety,    acknowl- 
edge ourselves  held   and  firmly  bound   unto  the  State  of  Ohio  in  the 

penal  sum  of  $ for  the  payment  of  which  we  hereby  jointly 

and  severally  bind  ourselves. 

Witness    our    hands    and    seals,    this    day    of , 

A.    D.,   19 . 

The  condition  of  the   above  obligation    is   such    that   whereas   the 

said  Court  of  Common  Pleas  of County,   Ohio,   in  the  above 

entitled  cause,  has  this  day  ordered  and  directed  that  the  real  estate 
described  in  the  petition  filed  in  said  cause,  be  sold  at  private  sale, 
for  the  best  price  obtainable,  and  the  proceeds  reinvested  in  other 
real  estate  located  in  this  State,  and  whereas  the  above  bound  J. 
E.  S.  was  duly  appointed  by  said  court  as  a  suitable  person  and 
trustee  to '  make  such  sale  and  reinvestment,  subject  to  said  court's 
approval   and  confirmation. 

Now,  therefore,  if  the  said  J.  E.  S.  shall  faithfully  discharge 
his  duties  as  such  appointee  and  trustee,  according  to  law,  and  in 
obedience  to  the  orders  of  said  court,  and  faithfully  reinvest  the 
monies  arising  from  such  sale,  then  this  obligation  is  to  be  void, 
otherwise,    to   remain   in   full   force. 

J.    E.    S., 

The &   Co., 

By  F.  T.,  Its  Attorney  in  fact. 


MERWTNB    ON    REAL    ACTIONS.  204 

No.  20.     The  entry  confirming  sale  and  ordering  trustee  to  pur- 
chase other  real  estate. 

Coubt  OF   Common    Pleas.   County,   Ohio. 

R.  S., 

Plaintiff, 

vs.  No.   . 

G.  M.  S.  and  C.  E.  S.,  minors,  J. 
E.  S.  as  guardian  of  the  estates  of 
said  G.  M.  S.  and  C.  E.  S.,  A.  R., 
J.  M.   K.  and  C.   H.  K., 
Defendants. 

This  day  came  J.  E.  S.,  appointed  herein  under  a  former  order 
of    this    court,    to    make    sale    of    said    real    estate,    and    reported    his 

proceedings  and  sale  of  said  real  estate  under  said  order  to  , 

the  purchaser,  which  report  is  filed  herein;  and  the  court  having 
carefully  examined  said  report  and  proceedings,  finds  that  said  sale 
was  fairly  conducted  and  made,  in  all  respects  as  prescribed  and 
required  by  said  order,  that  the  price  obtained  is  the  reasonable  value 
of  said  estate  so  sold,  and  doth  hereby  approve  and  confirm  said 
sale;  and  orders  and  directs  a  deed  of  conveyance  of  said  premises, 
so  sold  as  aforesaid,  to  be  made  by  said  J.  E.  S.,  who  is  hereby 
appointed  special  master  commissioner  for  that  purpose,  to  said  pur- 
chaser,   ,  on  payment  of  the  said  purchase  price  of  $ . 

And  it  is  further  ordered  and  directed  by  the  court  that  said 
J.  E.  S.(  as  trustee,  heretofore  appointed,  proceed  promptly  to  reinvest 
said  purchase  money  so  obtained,  in  the  following  manner:  To 
seek  and  find  other  good  and  substantial  income-producing  real  prop- 
erty, located  within  this  State,  in  which  the  same  may  be  invested 
so  as  not  to  prejudice  the  value  of  said  fund  to  any  of  the  parties 
in  interest;  that  when  such  investment  is  found,  he  enter  into  a 
provisional  contract  for  its  purchase,  and  report  his  proceedings, 
and  the  character  and  description  of  the  property,  before  consum- 
mating such  purchase,  to  this  court  for  approval  and  further  order. 

No.  91.     The  report  of  trustee  as  to  investment. 

Coubt  of  Common   Pi. has,  County,  Ohio. 

u.  s., 

I'Ui  in  tiff, 

vs.  No.    . 

G.   M.  S.  and   C.   E.  S.,  minors,  J. 
i:  S  a    guardian  of  the  estates  of 
Bald  G    M    8.  and  C.  B.  S..  A.  R., 
J.  M.  K.  and  C.   n.  K  . 

I><  f  i  mill  ii  Is. 

I.    E.    S.,    heretofore    appointed    in    this    cause   to   make   a   sale   of 
tin-    premised    described    in    the    petition,    and    having    sold    the    same 


205  FORMS. 

for    $ ,    under    the    former    orders    of    this    court,    and    having 

been  ordered  to  reinvest  said  proceeds  in  other  income-producing 
real    estate    in    this    State,    now    comes   and    reports    to    the    court: 

That  he  has  purchased  with  said  proceeds,  subject  to  the  ai>- 
proval  ol  this  court,  from  C.  C.  A.,  R.  D.  A.  and  M.  B.  A.,  the 
owners,    the    following    described    real    estate,    situate    in    the   City    of 

,    in   the  County   of  ,   and   in   the  State  of  Ohio,   and 

(Here  insert  description  of  real  estate)    that  said  premises  consist  of 

a  lot  fronting  feet  on  the  side  of  Avenue 

of    said    city,    and    extending    to    a    depth    of    feet, 

on    which    are    erected    a    stable    and    a    dwelling, 

composed    of    — —    rooms,    bath    room,    attic    and    basement,    on 

each  side.  Said  dwelling  has  porch  across  the  entire  front,  is  roofed 
with  slate,  and  is  plumbed  for  hot  water  and  natural  gas  heating. 

Said   premises   have  a   rental   of  about    $ per  month,   are 

worth   $ ,   and   are  to   be  free   and    clear  of  all   encumbrances, 

but  subject  to  certain  restrictions  as  to  buildings  and  the  sale  or 
manufacture    of    intoxicating    liquors. 

Said  investment  is  the  best  one  obtainable,  and  said  J.  E.  S. 
hereby  asks  approval  of  said  purchase,  and  authority  to  expend  said 
proceeds  in  payment  thereof. 


State   of  Ob-'  C-unty,    ss.: 

J.   E.   S.,   being   duly   sworn,   says  that  the  facts   stated  and  alle- 
gations contained  in  his  foregoing  report  are  true,  as  he  believes. 


Sworn  to  before  me  and  subscribed  in  my  presence,  this 
day  of  ,  19 . 


As  Notary  Public,  —  County,  Ohio. 

No.  92.     The  order  of  court  approving  investment. 

Court  of   Common   Pleas,  County,  Ohio. 

R.   S.. 

Plaintiff, 

vs.  No. . 

G.  M.  S.  and  C.  E.  S.,  minors,  J. 
E.  S.  as  guardian  of  the  estates  of 
said  G.  M.  S.  and  C.  E.  S.,  A.  R., 
J.   M.   K.  and  C.   H.  K., 
Defendants. 

This  day  this  cause  came  on  to  be  heard  upon  the  report  of  J.  E.  S. 

this  day  filed,  as  to  the  purchase  of  lot  No.  ■  of Addition 

in  the  City  of  ,  County,  Ohio,  was  duly  considered 

with    the    former    proceedings    herein,    and    the    evidence. 

And  the  court  having  carefully  considered  the  same,  and  being 
fully  advised  in  the  premises,  doth  find  that  said  purchase   has  been 


MERW1NE    ON    RE.4L,    ACTIONS.  206 

properly  made  and  in  all  respects  in  conformity  to  law  and  the 
former  order  of  this  court,  and  that  said  investment  is  the  best  one 
obtainable  and  will  be  for  the  best  interest  of  all  the  parties  concerned. 

It  is  therefore  ordered,  adjudged  and  decreed  that  said  purchase 
and  investment  be,  and  the  same  is  hereby  approved  and  confirmed; 
and  said  J.  E.  S.  is  ordered  to  consummate  said  purchase  as  reported 
by  him,  and  make  said  investment,  by  paying  therefor  the  proceeds 
arising  from  the  sale  heretofore  made,  and  having  title  conveyed 
free  and  clear  of  all  encumbrances,  by  general  warranty  deed  from 
the  said  present  owners,  to  R.  S.  for  and  during  her  natural  life, 
and  at  her  death  then  the  same  to  go  to  the  heirs  of  her  body  in 
fee  simple;  and  that  said  real  estate  shall  have  the  same  character 
and  be  governed  by  the  same  principles  of  law  as  the  estate  here- 
tofore sold. 

And  said  purchase  and  investment  being  consummated,  the  said 
J.  E.  S.  and  his  bondsman  stand  discharged. 

No.  93.     Another  form  for  a  petition  of  tenant  for  life  for  sale 
of  estate. 

Court  of  Common  Pleas.  County,  Ohio. 


Plaintiff, 
vs.  Petition  No. 


and  , 

Defendants. 

On   the  day  of  ,   19 ,  died,  leaving 

a  will,  by  the  terms  of  which   he  gave  to  his  widow,   said  , 

the  life  estate  in  the  real  estate  hereinafter  described,  a  copy  of 
which  will  and  the  probate  thereof  is  hereto  attached,  marked  Exhibit 
"A,."  and  made  a  part  hereof.  Following  is  a  description  of  said 
real   estate:       (Here   describe    it). 

By    said    will,    said    testator    gave    remainder    over,    in    said    real 

estate,  to ,  and  ,  his  sisters,  and  to  , 

in  trust  for  his  niece,  ,  wife  of  ,  and  to  his  brothers, 

— ■■ ,  ,  and  ,   and   to  his  nephew,  ,   their 

heirs   and    assigns    forever,    share   and    share   alike,    all    of    whom    are 

made   defendants   herein,    the    share    of   said    to   be    held   by 

se'd    trustee    for   her   benefit   during  her  life,  and   after   her   death   to 

pass  to  her  brothers  and   sisters,   children   of  and   , 

share  and   share   alike. 

Afterwards,   to-wit:    on   the   day   of  ,    19 ,   the 

said    ;    on    the    day    of    ,    19 ,    the    said 

;     and    on    the    day    of    -,    19 ,    the    said 

and   ,    sold    and    conveyed    their    respective    interests 

and  estates  to  the  said  real  estate  to  the  plaintiff,  and  on  the  

day   of  ,    19 ,   the  children   of   said  and  


207  FORMS. 

sold    and    conveyed    their    said    interests    in    said    real    estate    to    said 

defendant  ,   so   that  said   real  estate   is  now   owned   and  held 

as  follows:  The  plaintiff  owns  the  life  estate  in  the  entire  property 
under  said    will;    and  also   the   fee   simple  of  the  one   undivided   half 

by    purchase    as    aforesaid.      Said    defendant,    ,    owns    the    fee 

of   part   thereof   subject    to   the    life   estate    of   said    plaintiff 

under   said   will.      The   said   owns    the    fee   of  part 

thereof,  subject  to  said  life  estate  of  the  plaintiff.     The  said  

owns    the    fee    of    part    thereof    subject    to    said    life    estate. 

The  said  owns  the  fee  of  part   of  said   real   estate 

subject  to  the  life  estate  of  the  plaintiff  under  said  will,  by  purchase 
from  the  children  of  and  . 

The  plaintiff  also  avers  that  the  sale  of  said  undivided  half  of 
said  premises  of  which  she  owns  the  life  estate  with  the  remainder 
over,  as  aforesaid,  will  be  for  her  benefit,  and  do  no  substantial 
injury  to  the  said  owners  of  the  remainder,  and  if  the  court  shall 
find  that  such  sale  shall  be  more  to  the  interest  of  said  owners 
in  remainder,  she  is  willing  and  hereby  consents  that  said  entire 
real    estate   shall    be   sold. 

Wherefore    the    plaintiff    prays    that    the    court    may    direct    the 

sale  of  said  real  estate,  either  said  undivided  part  in  which 

she  owns  the  life  estate,  or  the  whole  thereof,  to  be  made  in  such 
manner  and  upon  such  terms  as  may  be  to  the  best  advantage  of 
all  the  parties,  and  to  appoint  a  suitable  person  or  persons  to  make 
the  same,  and  that  the  proceeds  of  said  sale  be  invested  for  the 
parties,  according  to  their  respective  interests,  under  and  according 
to  the  statute  in  such  cases  made  and  provided;  and  for  all  proper 
relief  to  which  the  plaintiff  in  law  or  in  equity  may  be  entitled. 


Attorneys   for  Plaintiff. 
The   petition    should    be    verified. 

Note. — Adapted    from    Yaple's    Code    Practice.      Subject: — Sale    of 
Entailed  and  Other  Estates. 


CHAPTER  V. 

SALE  OF  REAL  ESTATE  BY  AN  ADMINISTRATOR  TO 
PAY  DECEDENT'S  DEBTS. 


SECTION. 

200.  Nature  of  the  proceeding  and 
care  required  of  counsel 
conducting   the   same. 

207.  In  what  court  and  how  the 
application    shall   be   made. 

20S.  Determination  of  equities  and 
priorities  —  Distribution  — 
Order  for  release  of  liens — 
Fees  applicable  to  guar- 
dian-, assignees  and  other 
trustees. 

209.  When  an  executor  or  adminis- 

trator  to   apply   for  a   sale 
of  real  estate  ti>  pay  debts. 

210.  Real    estate    may    be    sold    by 

executor    or    administrator 
for  the  payment  of  legacies. 

211.  The   statute   of   limitations   as 

tn  such  actions. 

212.  What    interest   and  estates   in 

leal    estate    may    l>e    sold — 
Sale  of  equitable  estate. 
2i:;.     Heal   estate   fraudulently  con- 
veyed   is    liable    to   sale. 

214.  How  executor  or  administra- 
tor to  get  possession  of 
land  fraudulently  conveyed 
and  avoid  such  conveyances 
— When  such  action  must 
lie  brought . 

21.">.  What  are  debts  within  the 
terms  of  I  he  3tatu1  ■  au- 
thorizing  such   sale. 

210.  Administrat  r  de  hotiis  non 
to  complete  proceedings 
begun  by  his  predecessor. 

217.  What      the     petition     for     such 

real  estate  must  contain. 

218.  When  assets   of  decedenl    will 

he  mar-haled   in  <■  informity 
to   will. 

219.  Sale  prevented,  how. 

220.  Procedure     incidental    to    the 

action. 


SECTION. 

221.  Service      of       summons      and 

waiver  —  Legal  guardians 
may  consent — Other  pro- 
ceedings. 

222.  When  guardian  ad  litem  to  be 

appointed — They  have  no 
power  to  consent. 

223.  Court  to  order  real  estate  to 

be  sold  when — Terms  of 
sale  and  conduct  of  trial  if 
contested. 

224.  Heir    by    private    sale    of    the 

real   estate   will    not  defeat 
right   of   persona]   represen 
tative  to  sell. 

225.  The  estate  of  the   heirs  in  the 

lands  set  oil'  to  the  widow 
to  be  sold. 
220.  The  whole  of  the  real  estate 
to  be  sold  when  a  partial 
sale  would  injure  the  resi- 
due. 

227.  When  further  bond  will  be  re- 

quired of  the  administrator 
or  the  executor. 

228.  Awarding  of  costs  when  there 

are   objections   to   the   sale. 

22'.).  Appraisement  when  no  dower 
i-   to  he  assigned. 

230.  Appraisement  of  the  real  es- 
tate— Duty  of  appraisers 
as  to  dower  and  homestead 
— Where  lands  in  two  or 
more  counties. 

•_'."»  I .  Dower  especially  assigned  to 
lie  a   charge  on  the  land. 

232.  Vacancy    in    appraisers — How 

tilled. 

233.  Oath     of     appraisers — Certifi- 

cate thereof — View  ami  re- 
turn— Compensation  of  ap- 
praisers. 


20S 


209     SALE  OF  REAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.    §  206 

Sec.  206.     Nature  of  the  proceeding  and  care  required  of  coun- 
sel conducting1  the  same. 

We  now  conic  to  a  proceeding  for  the  sale  of  real  estate, 
purely  statutory,  and  which,  though  it  be  a  civil  action,  and 
adversary  in  its  character,  yet  it  is  of  such  a  nature  as  to  lead 
counsel  who  may  be  conducting  the  proceeding  to  think  it 
ex  parte  in  its  nature,  not  requiring  any  particular  care  and 
attention.  This  action  to  sell  the  real  estate  of  a  decedent  to 
pay  his  debts,  ought  to  require  great  care  and  attention  at 
the  hands  of  the  personal  representative  of  the  deceased  and 
his  counsel.  Carelessness  upon  the  part  of  both,  and  by  our 
courts  in  such  proceedings,  has  been  the  source  of  many  de- 
fective titles  in  this  State,  and  has  been  prolific  of  vexatious 
and  expensive  litigation.  Because  the  action  is  seldom  con- 
tested, the  petition  is  carelessly  prepared,  orders  are  asked  for 
and  given  without  investigation,  and  parties  are  not  made 
defendants  and  served  who  should  have  been  made  defendants 
and  brought  into  the  case.  The  persons  who  examine  real 
estate  titles  in  this  State,  when  scrutinizing  title  coming 
through  an  executor  or  administrator's  proceeding  to  sell  real 
estate  to  pay  debts,  knowing  how  careless  counsel  is  apt  to  be 
in  such  cases,  scrutinize  the  proceedings,  from  the  filing  of 
the  petition  to  the  deed  to  the  purchaser,  with  the  greatest  care. 
Too  much  cannot  be  urged  upon  the  bench  and  bar  of  this 
State  to  attend  to  such  proceedings  with  the  utmost  care.  The 
following  on  this  topic  was  quoted  with  approval  by  Judge 
Rockel  in  his  most  excellent  Avork,  The  Complete  Ohio  Probate 
Practice : 

"While  it  is  manifestly  the  policy  of  the  law  to  uphold 
judicial  sales  made  without  fraud,  so  as  not  to  deter  purchasers 
by  encouraging  the  apprehension  that  their  substantial  rights 
and  interests  may  be  sacrificed  to  technical  considerations — 
while  courts  will  go  very  far  to  insure  protection  to  innocent 
purchasers  in  collateral  proceedings,  even  in  cases  of  gross 
error  arising  out  of  blunders  or  carelessness  of  probate  courts 
or  their  officers — it  is  obviously  of  the  greatest  importance 
that  every  step  taken  in  subjecting  the  real  estate  to  sale  for 
the  payment  of  debts  be  as  nearly  as  possible  in  literal  com- 
pliance with  the  method  pointed  out  by  the  statute  upon  which 
the  proceeding  is  based.  Where  particular  forms  are  pointed 
out  for  the  execution   of  a    power,   however  immaterial  they 


§  206  MEBWINE   ON    REAL   ACTIONS.  210 

may  appear  in  themselves,  these  forms  are  conditions  that 
cannot  be  dispensed  with.  It  is  a  pernicious  error,  fruitful  of 
trouble  and  mischief,  to  suppose  that  any  vague  inefficient 
statement  of  circumstances  is  sufficient  to  authorize  an  order 
of  sale  of  real  estate,  if  the  applicant  and  the  judge  know  all 
about  the  matter;  or  that  the  good  faith  and  honesty  with 
which  the  application  is  made  nre  a  sufficient  safeguard  against 
ruinous  complications  and  litigation  that  may  follow  an  over- 
sight or  mistake.  The  anxioty  of  courts  to  vindicate  the 
validity  of  judicial  sales  should  not  be  relied  upon  as  a  pretext 
for  the  carelessness  of  executors  or  administrators,  or  the 
supineness  of  probate  courts,  in  the  several  steps  necessary  for 
the  sale  of  real  estate.  Even  if  the  sale  should  be  good  as 
against  collateral  attack — and  it  is  distressingly  uncertain  as 
to  what  extent  the  trial  and  even  appellate  courts  will  go 
in  this  direction — yet  many  acts  of  commission  or  omission, 
which  will  not  be  allowed  to  invalidate  the  transaction  in  a 
collateral  investigation,  may  in  a  direct  proceeding  subject 
.the  administrator  to  serious  liability,  the  estate  to  loss  and 
delay,  and  all  parties  concerned  to  vexatious  and  oftentimes 
ruinous  litigation.  No  part  of  an  administrator's  duty  claims 
more  careful  attention  and  demands  more  imperatively  the 
advice  and  assistance  of  a  competent  professional  man  than 
his  relations  to,  and  duties  concerning,  the  real  estate  of  the 
deceased."  1 

The  personal  representative,  at  common  law,  had  no  power 
to  sell  decedent's  real  estate  to  pay  debts,  and  whatever  power 
such  representatives  now  have  in  this  State  comes  to  them  by 
legislative  enactment.2 

Under  the  early  practice  in  this  State,  and  before  the 
adoption   of  the   code,   it   was   a    proceeding   in    rem  in   which 

i  Woerner  <>n  Admr.,  1021.  citing  res*  v.  Smith.  10  I'd.  161;  Knox 
Alabama  v.  Price,  42  Ala.  :{!);  Kel-  v.  .Tenks,  7  Mass.  4SS;  In  re  Ma- 
ley's  Estate,  1  Abb.  New  Cases,  102;  hony,  34  Bun,  501;  Lynch  v. 
Worthy  \.  Johnson,  8  Ga.  236;  Hi. 'key.  13  111.  App.  139;  Wright  v. 
Finch  v.  Edmenson.  !'  Tex.  504;  Edwards,  10  Oregon,  298;  Long  v. 
Frazier  v.  Stenrod,  7  Iowa.  339;  Long,  142  N.  V.  545. 
State  v.  Conover,  9  X.  J.  L.  338;  -Lessee  v.  Barrows,  2  O.  S.  242: 
Gross  v.   Howard,  52  Me.  192;    Hay-  Ludlow  v.  Johnson,  '.1  O.  553;  Paine 

wood    v.    Hayw 1.    80    X.    C.    42;  v.  Skinner,  8  O.  159;  McCall  v.  Pix- 

Monahan    v.    Vandyke,   27    111.    1">4:  ley,  48  0.   K.  379;   Doan   v.  Bitely, 

Gelstrop    v.    .Moure.    26    Miss.    206;  49  O.  S.  588. 
Vance  v.  Marony,  4  Cal.  47;   Vent- 


211  SALE    OF    REAL    ESTATE    TO    PAY    DECEDENT 's    DEBTS.         §  207 

minor  defendants  were  not  required,  as  now,  to  be  served 
with  process  and  required  to  answer.  Now  the  action,  whether 
begun  in  the  common  pleas  or  the  probate  court,  is  a  civil 
action,  and  it  is  adversary  in  its  nature.3 

Sec.  207.     In  what  court  and  how  the  application  shall  be  made. 

In  order  to  obtain  such  authority,  the  executor  or  admin- 
istrator is  required  to  commence  a  civil  action  in  the  probate 
court,  or  court  of  common  pleas  of  either  the  county  in  which 
the  real  estate  of  the  deceased,  or  any  part  thereof,  is  situate, 
or  of  the  county  in  which  was  issued  his  letters  testamentary 
or  of  administration.4 

This  statute  gives  these  two  courts  concurrent  jurisdiction 
to  hear  and  determine  the  action.  The  court  in  which  the 
action  is  first  filed  and  the  summons  issued,  nncler  a  well  settled 
principle  of  law,  will  have  power  to  entertain  the  action  to  the 
exclusion  of  the  other,  providing  there  is  no  special  reason 
requiring  one  or  the  other  court  to  hear  and  determine  the 
action.  Aside  from  this  principle  there  are  several  matters 
in  connection  with,  and  arising  out  of,  such  sales,  that  cannot 
be  heard  and  determined  by  the  probate  court.  The  courts  of 
probate  in  this  State  have  several  equity  powers  but  these  are 
limited.  Where  it  is  necessary  to  correct  a  deed,  cancel  a 
mortgage  or  other  lien,  set  aside  a  fraudulent  conveyance,  and 
in  all  cases  where  the  chancery  court  powers  are  required  to 
be  invoked,  the  better  practice  is  to  file  the  petition  in  the 
court  of  common  pleas.  This  latter  court  unquestionably  has 
the  power  to  settle  all  questions  of  title,  and  purchasers  will 
be  encouraged  to  buy  at  the  sale.  Unless  all  questions  of  title 
are  heard  and  determined,  prior  to  the  day  of  sale,  the  property 
will  not  bring  its  fair  value  at  such  sale.  But  in  all  cases 
where  there  is  nothing  to  be  determined  in  the  action  but  the 
right  of  the  personal  representative  to  sell  the  real  estate  of 
the  deceased  to  pay  his  debts,  then  there  are  several  reasons 
why  the  action  should  be  brought  in  the  probate  court.  The 
proceedings  can  be  conducted  by  that  court  more  expeditiously. 

sRockel's  Complete  Ohio  Probate  0.  368;  Benson  v.  Cilly.  8  0.  S. 
Practice.  8  812.  citing  Robb  v.  Ir-  604;  Biggs  v.  Dickie,  12  0.  S.  472. 
win,  15  O.  689;  Sheldon  v.  Newton,  ^(ien'l      Code,      §10775      (R.      S. 

3   0.   S.   494;    Snevely   v.   Lowe,    18       §  6137)  ;  see  also  Gen'l  Code,  §  10493 

(R.  S.   §525). 


5  207 


merwine  on  real  actions. 


212 


This  court  is  always  in  session,  and  decrees  and  orders  can  be 
taken  there  when  they  cannot  be  taken  in  the  common  pleas 
court.  Again,  tbe  probate  court  has  charge  and  control  of  the 
persona]  representative,  and  being  more  familiar  with  the  estate, 
and  with  the  question  as  to  wmether  there  are  debts  requiring 
a  sale  of  the  real  estate,  the  action  had  better  be  brought  in 
that  court.  In  the  note  below  will  be  found  a  further  discus- 
sion of  this  subject.3 

In  discussing  the  equity  powers  of  the  probate  court  in  an 
action  of  an  administrator  to  pay  decedent's  debts,  our  Supreme 
Court  said  : 

"Our  statutes  are  broad  enough,  we  think,  to  authorize  the 
probate  court  to  determine  all  <|uestions  of  law  and  fact  arising 
in  actions  brought  before  it  by  executors  and  administrators 
to  sell  real  estate  for  the  payment  of  the  debts  of  the  estates 
they  represent.  The  power  to  order  the  real  estate  of  decedent 
to  be  sold  by  necessary  implication  includes  the  power  to  decide 
whether  the  laud,  the  sale  of  which  is  sought  in  the  action,  was 
the  property  of  the  deceased."  ° 

From  the  foregoing  we  see  that  the  probate  court  in  such 
actions  has  certain  equity  powers.  This  power  is  evidently 
based  upon  the  theory  that  such  court  has  full  power  to  hear 
and  del  ermine  all  questions  in  such  proceedings  to  sell  real 
estate,  unless  such  authority  is  expressly  denied,  because  the 
power  of  the  court  in  such  cases  includes  not  only  those  powers 
that  are  expressly  granted,  but  also  all  those  powers  that  are 
necessary  to  carry  them  into  effect. 

Furthermore,  as  is  disclosed  by  the  next  section,  the  statute 
expressly,  in  such  actions,  gives  the  probate  court  certain 
equity  powers. 


""The  policy  of  our  legislation 
has  long  been  opposed  to  the  neces- 
sity of  a  resort  to  different  jurisdic- 
tions ami  multiplicity  of  actions  in 
order  to  obtain  the  full  and  final 
relief  to  which  parties  may  be  en- 
titled, and  in  favor  of  clothing  trib- 
unals once  acquiring  control  of  the 
subject  mutter  of  controversy,  and 
of  the  parties,  with  jurisdiction,  if 
capable  of  exercising  it.  to  determine 
the  ultimate  rights  of  the  parties, 
and  administer  to  them  their  com- 
plete remedy.     The  policy  is  a  com- 


mendable one  with  which  the  statute 
making  actions  like  that  under  con- 
sideration, civil  actions,  and  giving 
the  probate  court  co-ordinate  juris- 
diction with  the  court  of  common 
pleas,    is    in    harmony." 

Doan  \.  Bitely,  in  0.  S.  594;  see 
also  on  this  subject  The  Complete 
Ohi  >  Probate  Practice,  Vol.  1,  §  815, 
citing  Bank  v.  Tde,  20  C.  C.  665; 
Stone  v.  Stone,  42  0.  S.  53;  Bank 
v.    Carpenter,   7    0.   21. 

e  Dean  v.  Bitely,  -10  0.  S.  588; 
Haven    v.    Horton,   53    O.    S.   345. 


213     SALE  OF  REAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.   §  208 

Sec.  208.  Determination  of  equities  and  priorities — Distribu- 
tion— Order  for  release  of  liens — Fees  applicable  to  guardi- 
ans, assignees  and  other  trustees. 

The  probate  court  or  court  of  common  pleas  in  which  such 
action  may  be  pending,  have  full  power  to  determine  equities 
between  parties  and  the  priorities  of  lien  of  the  several  lien- 
holders  on  said  real  estate;  and  to  order  a  distribution  of  the 
money  arising  from  the  sale  of  such  real  estate  according  to 
the  respective  equities  and  priorities  of  lien  as  found  by  the 
court. 

When  the  action  is  determined  by  the  probate  court,  the 
judge  thereof  must  make  the  necessary  order  for  an  entry  of 
release  and  satisfaction  of  all  mortgages  and  oilier  liens  upon 
said  real  estate,  and  must  enter  such  release  and  satisfaction, 
together  with  a  memorandum  of  the  title  of  the  case,  the 
character  of  the  proceedings  and  the  volume  and  page  of 
record,  where  recorded,  upon  the  record  of  such  mortgage, 
judgment  or  other  lien  in  the  office  where  the  sume  appears  as 
matter  of  record:  and  he  shall  tax  in  his  cost  bill  the  fee  pro- 
vided by  law  for  entering  such  release  and  satisfaction  ;  and 
also  a  fee  of  twenty-five  cents  to  himself  for  such  entry. 

The  provisions  of  this  section  apply  as  well  to  proceedings 
by  guardians,  assignees  and  trustees  to  sell  land  to  pay  debts.7 

Sec.  209.  When  an  executor  or  administrator  to  apply  for  a 
sale  of  real  estate  to  pay  debts. 

As  soon  as  the  executor  or  administrator  ascertains  that 
the  personal  estate  in  his  hands  will  be  insufficient,  to  pay  all 
the  debts  of  the  deceased  with  the  allowance  to  the  widow  and 
children  for  their  support  twelve  months  and  the  charges  of 
administering  the  estate,  it  is  made  his  duty  to  apply  to  the 
probate  court  or  the  court  of  common  pleas  for  authority  to 
sell  the  real  estate  of  the  deceased.8 

Sec.  210.     Real  estate  may  be  sold  by  executor  or  administrator 
for  the  payment  of  legacies. 
When  a   testator  shall  have  given  any  legacy  by  will  that  is 
effectual  to  pass  or  charge  real  estate,  and  his  personal  estate 

7  Gen'l      (ode.      §10783      (R.      S.  sGen'l      Code,      §10774      (R.     S. 

S  0145) .     See  No.   100  for  form  set-       §6136). 
ting  up  mortgage  by  cross  petition. 


§211 


MERWINE    ON    REAL    ACTIONS. 


214 


shall  be  insufficient  to  pay  such  legacy,  together  with  his  debts, 
the  allowance  to  the  widow  and  children  and  the  costs  of 
administration,  the  executor  or  administrator  with  the  will 
annexed  may  be  ordered  to  sell  his  real  estate  for  that  purpose 
in  the  same  manner  and  upon  the  same  terms  and  conditions 
as  are  prescribed  herein  for  the  payment  of  debts.9 

Sec.  211.     The  statute  of  limitations  as  to  such  actions. 

The  statute   does  not   give   the  personal   representative  any 
discretion  as  to   the   tiling   of   the   petition.     When   there  are 
debts  and  legacies,  as  set  forth  in  the  above  statutes,  to  be  paid, 
and  there  are  no  personal  assets  or  the  personal  assets  are  in- 
sufficient to  pay  the  same,  the  petition  must  be  tiled  to  sell  the 
real  estate  of  the   deceased  to   pay  the   same,  unless  bond  is 
given  by  the  heirs  or  the  parties  interested,  as  herein  shown, 
to  pay  the  debts.10    And  should  he  not  do  so,  the  court  on  its 
own  motion,  should  require  him  to  do  it ;  and  if  after  notice, 
he  still  neglects  or  refuses,  he   should  be  discharged  without 
compensation  for  his  services.     It  follows,  of  course,  that  any 
creditor  can,  by  application  to  the  court,  require  the  admin- 
istrator or  executor  to  file  the  petition  in  a  proper  case.     But 
in  case  the  personal  representative  should  not  file  the  petition, 
it  has  been  held  that,  as  between  the  estate  of  a  deceased  debtor 
and  the  creditors  thereof,  the  statute  of  limitations  does  not 
run  against  their  claims,  after  they  have  been  presented  to, 
and  allowed  by,  the  executor  or  administrator.11     And  where 
an   action   is  begun  under  the  code  for  the  partition  of  real 


b  Gen'l  »'oile,  §10817  (R.  S. 
§017-2  i. 

io  See  No.   127   for   form  of  bond. 

ii  Tayli  r  v.  Thorn,  2'.)  0.  S.  569. 
Tlic  functions  and  duties  of  an  ad- 
ministrator do  ii"t  cease  until  the 
estate  is  fully  settled.  McAflfee  v. 
Phillips,  2.".  0.  S.  374. 

••'I  he  adminisl  i  ator  of  T.,  who 
died  insolvent,  applied  in  1853  to 
the  probate  court  for,  and  procured 
;m  order  to  sell  the  lands  of  T.  to 
pay  debts.  T.  having  Ief1  a  widow 
and  minor  children,  unmarried,  and 
composing  a  part  of  Ms  family,  a 
homestead  in  said  lands  was  Bel 
apart  for  their  occupancy,  l>y  metes 


and  bounds.  All  the  remaining 
property  of  the  decedent,  both  real 
and  personal,  was  sold,  and  the 
proceeds  applied  to  the  payment  of 
the  debts  againsl  the  estate,  leav- 
ing a  per  centum  of  said  debts  un- 
paid. In  .March,  L876,  the  children 
of  T.  having  arrived  at  full  age,  said 
administrator,  by  supplemental  pe- 
tit inn.  applied  to  said  probate  court 
for  an  order  to  sell  the  premises  so 
gel  apart  for  such  homestead,  for 
the  purpose  of  paying  the  unpaid 
balance  of  said  debts.  Held,  that 
the  administrator  was  entitled  to 
auch  order."  Taylor  v.  Thorn,  29  0. 
S.    570. 


215     SALE  OF  REAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.    §  212 

estate  in  which  the  administrator  of  decedent  files  his  answer 
and  cross-petition,  alleging  that  it  is  necessary  to  sell  the  real 
estate  to  pay  debts  of  the  ancestor,  and  asking  for  an  order  of 
sale,  such  administrator  is,  upon  proof  of  such  unpaid  debts, 
entitled  to  an  order  of  sale,  and  the  statutes  of  limitation 
have  no  application  in  favor  of  such  heirs.12 

The  principle  set  forth  in  this  section  as  to  the  statutes  of 
limitation  would  require  counsel  who  may  be  examining  title  to 
real  estate  once  owned  by  a  deceased  at  the  time  of  his  death, 
to  look  well  into  the  matter  of  the  claims  presented  and 
allowed  by  the  personal  representative;  for  all  such  claims,  when 
presented  and  allowed  by  the  personal  representative,  are  in  the 
nature  of  liens  on  decedent's  real  estate,  against  which  the  statute 
will  not  run,  and  which  can  be  enforced  at  any  time,  no  difference 
in  whose  hands  the  real  estate  may  in  the  meantime  have  come. 
Even  a  settlement  of  the  estate,  supposed  to  be  a  final  settle- 
ment, will  not  relieve  real  estate  of  the  deceased  from  being 
sold  by  the  administrator  on  the  discovery  by  him  of  unpaid 
claims  against  decedent's  estate.13 

So  it  would  seem  from  the  authorities  that  the  personal 
representatives  have  the  right  to  bring  the  action  to  sell 
decedent's  real  estate  so  long  as  claims  which  have  been  pre- 
sented and  allowed,  remain  unpaid. 

Sec.  212.     What  interest  and  estates  in  real  estate  may  be  sold 
— Sale  of  equitable  estate. 

As  the  statute  requires  the  real  estate  of  decedent  to  be 
sold  to  pay  debts,  there  can  be  no  question  but  that  all  fee 
simple  estates  may  be  sold  for  such  purpose.  This  will  also 
include   permanent  leasehold  estates,  renewable  forever.14 

i^Lafferty  v.  Shinn,  38  O.  S.  40.  tion,   Jackson  v.  McGruder,  51    IVTo. 

13  See  in  this  connection,  1  Com-  55;  Kenly  v.  Bryan,  110  111.  562; 
plete  Ohio  Probate  Law  and  Prac-  Jennings  v.  Jenkins,  9  Ala.  285; 
tice,  §  817,  citing  Ricard  v.  Wil-  land  entries  paid  for  but  no  patent 
Hams,  7  Wheat.  59;  Yandell  v.  issued,  Avery  v.  Dupue,  9  0.  145; 
Pugh,  53  Miss.  295;  Woerner,  lands  having  no  record  title,  Wood; 
Admr.,  1027,  1028;  Ward  v.  Bar-  v.  Monroe,  17  Mich.  238;  land  con- 
rows,  2  O.  S.  241;  Farron  v.  Robin-  veyed  by  heirs,  Fiscus  v.  Moore, 
son,    17   O.   S.  242.  121    Tnd.    547;    Scher    v.    Ingerman, 

14  Complete  Ohio  Probate  Prac-  110  Ind.  428;  Smith  v.  Anderson, 
tice,  §820,  citing  the  following  in-  31  0.  S.  144;  Carter  v.  Lee,  51  Tnd. 
stances  of  what  may  be  sold;  land  292;  Ferguson  v.  Carter,  9  Mo.  App. 
given    away.      McGellicuty    v.   Cook,  497;   Fike  v.  Guen,  64  N.  C.  605. 

5  Blackf.  179;  an  equity  of  redemp- 


§  213  MERWINE    ON    REAL    ACTIONS.  216 

The  statute  provides  that  when  a  petition  is  filed  for  the 
sale  of  an  equitable  interest  which  the  deceased  held  in  any 
lands,  the  executor  or  administrator  must  set  forth  in  the 
petition  the  nature  of  such  equitable  estate  or  interest,  making 
all  necessary  parties,  including  the  persons  holding  the  legal 
title  thereto,  and  those  who  are  entitled  to  the  purchase  money 
therefor;  and  ihe  court  may  in  such  case  notwithstanding  the 
preceding  provisions  of  this  title  make  such  order  for  the  ap- 
praisement and  sale  of  such  equitable  estate  for  the  indemnity 
of  the  estate  of  the  deceased  against  the  claim  for  such  pur- 
chase money,  and  for  the  adjustment  of  the  dower  of  the 
widow  of  the  deceased  in  such  equitable  estate,  by  estimating 
and  directing  to  be  paid  to  her  the  value  of  a  life  annuity  of 
one-third  of  such  equitable  estate  or  otherwise,  as  it  may  deem 
just  and  right  between  all  parties  in  interest.15 

Where  the  decedent  may  have  taken  real  estate  under  a 
deed  so  defectively  executed  as  to  cause  the  legal  title  to  be 
in  another,  decedent  would  still  have  such  an  equitable  in- 
terest in  the  real  estate  as  to  authorize  his  personal  repre- 
sentatives to  be  entitled  to  sell  it  for  the  payment  of  debts.16 

Sec.  213.     Real  estate  fraudulently  conveyed  is  liable  to  sale. 

The  real  estate  liable  to  be  sold  as  aforesaid  will  include  all 
that  the  deceased  may  have  conveyed  with  intent  to  defraud 
liis  creditors,  and  all  other  rights  and  interests  in  lands,  tene- 
ments and  hereditaments:  provided,  that  lands  so  fraudulently 
conveyed  cannot  be  taken  from  anyone  who  purchases  them  for 
a  valuable  consideration,  in  good  faith  and  without  knowledge 
of  the  fraud:  and  no  claim  to  land  so  fraudulently  conveyed 
can  be  made  unless  within  four  years  next  after  the  decease  of 
the  grantor.17 

i«Gen'l      Code.     §10811      (R.     S.  §  fil.30) .      Sco    No.    !>4    for    form    for 

§6166).  petition    in   such   case.     Sec    No.   94 

i« Williams  v.  Spriggs,  <i  0.  S.  and  following  for  forms  of  jill  the 
585;  Can-  v.  Williams,  10  0.  305;  pleadings,  process,  writs,  judgments 
;iv  to  what  arc  equitable  ami  legal  ami  orders,  from  the  filing  of  the 
estates,  see  Avery  v.  Dufrees,  !•  0.  petition  to  the  dval  from  tin-  per- 
145;  Livingston  v.  Newkirk,  3  sonal  representative  to  the  pur- 
Johns.  Ch.  316;  Biggs  v.  Beckell,  12  chaser,  tlio  same  being  where  the  ac- 
0.   S.   AU.  lion  is  brought  in  the  common  picas 

17  Gen']     Code,     §10777      (R.     S.  court. 


217     SALE  OF  REAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.    §  214 

Sec.  214.  How  executor  or  administrator  to  get  possession  of 
land  fraudulently  conveyed  and  avoid  such  conveyances — 
Where  such  action  must  be  brought. 

If  land  is  to  be  included  in  such  action  which  has  been 
so  fraudulently  conveyed,  the  executor  or  administrator  may 
either  before  or  at  the  same  time  bring  an  action  for  the 
recovery  of  the  possession  of  such  land;  or  he  may  in  his 
action  for  the  sale  thereof  allege  the  fraud  and  have  the 
fraudulent  conveyance  avoided  therein;  but  when  such  land 
is  included  in  the  application  before  a  recovery  of  the  posses- 
sion thereof,  the  action  must  be  in  the  court  of  common  pleas.18 

The  authority  to  set  aside  a  fraudulent  conveyance  and  to 
subject  such  real  estate  to  the  payment  of  decedent's  debts, 
does  not  reach  real  estate  so  conveyed  to  a  grantee  who  is 
innocent  of  the  fraud.  While  this  is  true,  yet  there  is  nothing 
under  this  statute  preventing  the  administrator  from  suing  the 
fraudulent  grantee  who  conveys  to  the  innocent  grantee  for  the 
value  of  the  real  estate  and  on  recovery  thereof  applying  the 
same  to  the  payment  of  decedent's  debts.  The  law  does  not 
permit  a  grantor,  who  creates  a  trust  for  his  own  benefit,  to 
hinder  or  delay  his  creditors,  to  maintain  any  action  to  enforce 
the  trust.  But  it  has  been  said  that  no  logical  or  ethical  con- 
sideration would  justify  the  extension  of  this  rule  to  the  de- 
frauded creditors  of  the  grantor  or  to  anyone  standing  in  their 
rights.  They  are  in  no  sense  particeps  criminis.  Accordingly 
we  have  express  provisions  of  statutes  authorizing  suits  to 
subject  property  so  conveyed  to  the  payment  of  the  grantor's 
debts.  Such  suit  may  be  brought  by  the  creditor,  or  by  the 
assignee  of  the  grantor  for  the  benefit  of  the  creditors,  or  by 
the  administrator  under  the  statutes  above  quoted.  In  none 
of  these  statutes  is  there  express  authority  for  an  action 
against  the  fraudulent  grantee  for  the  value  of  the  lands  when 
the  rights  of  a  bona  fide  purchaser  intervene.  But  that  such 
'action  may  be  maintained  by  the  proper  party  seems  clear  on 
both  reason  and  authority.19 

As  between  the  parties  a  conveyance  in  fraud  of  creditors 


is  On'l     Code.      §10778      (R.     S.  §177:    Solinsky    v.    Hank.   85    Term. 

§6140).  368;   Chamberlain  v.  Jones,  114  Ind. 

19  From  opinion  of  Shauck,  J.,  in  458:  Mason  v.  Pierson,  ti!)  Wis.  585; 

Dony   v.    Clark,   55    O.   S.   .3.3.   citing  Post  v.   Stiger,  29  N.  J.   Eq.  554. 
Wait    on    Fraudulent    Conveyances, 


§215 


MERWINE    ON    REAL    ACTIONS. 


218 


is  good.  And  an  administrator,  or  executor,  cannot  bring  the 
action  to  set  aside  the  deed  for  the  benefit  of  an  heir,  nor  can 
such  action  be  brought  to  set  aside  a  fraudulent  conveyance 
and  to  subject  the  real  estate  for  payment  of  decedent's  debts, 
if  the  decedent  at  the  time  of  the  alleged  conveyance  still  had 
other  personal  and  real  property  sufficient  on  execution  to  pay 
all  of  his  debts.20 


Sec.  215.     What  are  debts   within  the  terms   of  the   statute 
authorizing  such  sale. 

It  has  been  held  that  it  is  an  abuse  of  the  statute  for  an 
administrator  to  bring  an  action  for  the  sale  of  decedent's 
real  estate  for  the  mere  purpose  of  settling  a  dispute  as  to 
title  to  the  lands.2' 

Taxes  which  have  accumulated  on  decedent's  real  estate  is 
a  debt  within  the  meaning  of  the  statute,  and  the  personal 
representatives  are  authorized  to  sell  real  estate  for  their  pay- 
ment.22 The  allowance  to  the  widow  and  her  minor  children 
for  the  year's  support  is  a  debt,  authorizing  the  administrator 
to  bring  the  action.23 

The  personal  representatives  are  authorized  to  sell  the 
decedent's  real  estate  for  the  payment  of  legacies  which  are  a 
charge  upon  testator's  real  estate.  The  personal  estate  of  the 
testator  is  the  primary  fund  for  the  payment  of  debts  and 
legacies,  and  the  action  to  sell  real  estate  to  pay  a  legacy  will 
not  be  allowed  unless  the  testator,  from  the  terms  of  his  will, 
expressed  an  intention  that  his  real  estate  should  be  charged 
with  the  payment  of  the  legacy.24 


20  McCall  v.  Pixley,  4S  ().  S.  379; 
Henrj '-    Probate   Law.  §  l(.*s. 

2i  Weed   v.    Butler,  23  0.   S.   520. 

22  Welsh  v.   Perkins,  8  0.  52. 

28  Allen  v.  .Mien.  18  0.  S.  234; 
executors  commission  a  debt,  Wil- 
liam- v.  Williams,  8  0.  S.  52; 
Money  borrowed  to  pay  claims 
againsl  an  estate,  a  debt,  Seldman 
v.  Lindeman,  I  W.  L.  B.  91 1  ;  si  reel 
assessments  not  a  debt,  Wilson  v. 
Ball,  6  C.  (.  570.  As  to  what 
claims  are  entitled  to  subrogation, 
see  Sidener  v.  Hawes,  37  0.  S.  532; 
Cote  v.  Peck,  30  W.  L.  B.  5;  Smith 
v.  Uayward,  5  N.  P.  501 ;   Woerner 


on    Admr.,     1039;     Complete     Ohio 
Probate   Practice.   §  818. 

-|  Geiger  v.  Worth,  17  O.  S.  564. 
"Whether  a  legacy  is  a  charge  upon 
the  real  estate  of  a  testator,  is  to 
be  determined  from  all  the  provi 
sions  of  his  will  and  the  condition 
of  his  property  as  known  to  him  at 
the  time  of  making  his  will.  Au- 
thority given  by  will  to  an  execu- 
tor to  convert  realty  into  money,  is 
the  equivalent  to  an  authority  to 
sell."  Dean  v.  Lowenstein,  •  >  < '.  C. 
587.  Express  words  are  not  neces- 
sary. Clyde  v.  Simpson,  4  ( ).  S. 
445;  see  also  upon  this  point  Moore 


219     SALE  OP  REAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.   §  216 

Sec.  216.     Administrator  de  bonis  non  to  complete  proceedings 
begun  by  his  predecessor. 

If  the  executor  or  administrator  who  has  commenced  such 
action  for  the  sale  of  real  estate  die,  resign,  or  be  removed 
or  his  power  ceases  at  any  time  before  the  conveyance  of  the 
same,  under  an  order  of  the  court,  the  administrator  de  bonis 
non  must  proceed  with  such  sale,  and  may  convey  the  lands 
sold  before  or  after  his  appointment  and  may  be  required  to 
give  an  additional  bond  in  the  like  manner  as  if  such  admin- 
istrator de  bonis  non  had  filed  a  petition.25 

Should  an  administrator  de  bonis  non  be  required  to  com- 
plete the  proceedings  to  sell  as  is  authorized  by  this  statute, 
there  should  be  placed  upon  the  court's  journal  an  entry  show- 
ing the  facts  of  the  death  of  the  first  administrator,  and  the 
appointment  of  another  in  his  stead.26 

Sec.  217.     What  the  petition  for  such  sale  of  real  estate  must 
contain. 

The  petition  must,  in  all  cases,  set  forth  the  amount  of  the 
debts  due  from  the  decedent  as  nearly  as  they  can  be  ascer- 
tained, and  the  amount:' of  charges  of  administration,  the  value 
of  the  personal  estate  and  effects,  and  a  description  of  the  real 
estate,  and  the  value  thereof,  if  appraised.27 

The  petition  should  allege  the  giving  of  the  bond  by  the 
personal  representative,  and  the  amount  of  it.  It  is  necessary 
to  make  the  allegations  concerning  the  appraisement  and  the 
bond,  because  if  the  real  estate  was  appraised,  according  to 
law,  at  the  time  of  the  appraisal  of  the  personalty,  no  new 
appraisement  is  required,  and  if  the  first  bond  is  insufficient 
to  cover  the  amount  of  the  proceeds  of  the  sale  of  real  estate, 
the  court  will  require  the  additional  bond. 

If  the  action  is  begun  by  an  executor  or  an  administrator 
de  boitis  non,  the  appointment  should  be  alleged,  the  probate 

v.  P.eckwith,   14  O.  S.   129;   Longley  §6141).      See    No.    115   for   form   of 

v.    Stump,    11    W.    L.    B.    247;    Wil-  petition    in    the    probate    court    to- 

liams   v.    Williams,   8   O.   S.   300.  gether     with     forms     for    all     other 

25  Gen'l  Code,  §1077(1  (R.  S.  \  leadings,  writs,  process,  judgments, 
§6138).  orders  and   papers   required  to  pass 

26  For  form  of  such  journal  entry  title  to  the  real  estate  from  the  pe- 
see  Complete  Ohio  Probate  Practice,  tition  to  the  delivery  of  the  deed  by 
Vol.  1,  §  836.  the    personal    representative    to    the 

^Gen'l     Code,     §10779      (R.     S.      purchaser. 


§  217  MERWINE    ON    REAL    ACTIONS.  220 

of  the  will  and  the  dates  of  each,  together  Avith  the  qualifica- 
tion of  such  executor  and  administrator,  and  his  acting  as  such 
at  the  time  of  the  filing  of  the  petition.  As  the  action  is  a  civil 
action,  adversary  in  its  character,  the  pleader  should  observe 
the  rule  that  all  of  the  facts  to  be  alleged  should  be  stated  in 
ordinary  and  concise  language,  and  that  the  rules  of  code 
pleading  should  be  observed. 

The  rights  of  everyone  having  any  interest  in  the  real  (-state 
should  be  protected.  To  the  end  that  the  court  may  know  how 
to  protect  such  rights,  everyone  who  has  an  interest  in  the  real 
estate  should  be  made  a  party  to  the  action.  Should  there  be 
any  unexpired  leases  outstanding  against  the  real  estate,  these 
should  be  alleged,  giving  detailed  facts,  and  the  lessees  thereof 
should  be  maele  parties  defendant.  If  there  is  a  widow  entitled 
to  dower,  or  homestead,  or  both,  these  facts  shoulel  be  alleged 
and  the  widow  made  a  party  defendant.  If  anyone  is  a 
joint  tenant  with  the  decedent,  his  title  thereto  should  be 
alleged  and  the  joint  tenant  made  a  party. 

The  widow  of  the  eleceased  anel  the  heirs,  devisees  or  persons 
having  the  next  estate  of  inheritance  from  the  eleceased  and 
all  mortgagees  anel  other  lienholders,  whether  by  judgment  or 
otherwise,  of  any  of  the  lands  sought  to  be  sold,  anel  all  trustees 
holding  the  legal  title  thereto  or  to  any  part  thereof;  and 
when  a  fraudulent  conveyance  is  sought  to  be  set  aside  in  such 
action,  all  persons  holding  or  claiming  thereunder  shall  be 
maele  parties.28 

In  actions  of  this  kind,  and  in  all  actions,  the  ultimate 
object  of  which  is  to  sell  real  estate  by  judicial  decree,  counsel 
should  keep  steadily  in  mind  one  important  requisite:  it  is  to 
give  the  purchaser  good  title,  cutting  off  all  claims  that  are 
an  incumbrance  so  as  to  encourage  persons  to  bid  at  the  sale, 
and  so  as  to  bring  the  highest  price  for  the  real  estate.  To 
this  end  counsel,  before  bringing  the  action,  should  search  the 
records  for  all  parties  holding  claims  against  the  real  estate, 
and  these  should  be  maele  parties  defendant  anel  required  to 
set  forth  Iheir  claims  under  penalty  of  having  the  same  helel 
null  and  void,  in  case  they  should  neglect  to  assert  the  same 
in  the  action.     It  is  essential  that  all  lienholders  by  mortgage, 

28  den'I     Code,      §  10780      (R.     S.        unfounded  claim  against  the  real  es- 
§11142).      See    §  r>!>    for    the    proper       tatc. 
allegations    to   cut    out    any    alleged 


221 


SALE  OE  REAL  ESTATE  TO  PAY  DECEDENT  S  DEBTS. 


§218 


mechanics'  lien,  vendors'  lien,  execution  lien,  tax  lien,  assess- 
ment lien,  alimony  lien,  a  lien  by  a  legacy  which  is  so  made 
by  will,  and  all  of  the  many  liens  known  to  the  law,  should  be 
made  parties  to  the  action,  and  the  nature,  priority,  and  amount 
thereof  fixed  and  determined  by  the  court  in  the  action.  Pur- 
chasers at  judicial  sales  are  held  to  the  maxim  caveat  emptor 
and  for  their  protection  the  real  estate  is  sold  free  of  all  the 
liens  and  claims  against  it,  the  amount  of  the  respective  liens 
attaching  to  the  fund  arising  from  the  sale.'"' 

Sec.  218.     When  assets  of  decedent  will  be  marshalled  in  con- 
formity to  will. 

If  there  should  be  in  the  last  will  of  the  deceased  any  dis- 
position of  his  estate  for  the  payment  of  his  debts  or  any  pro- 
vision that  may  require  or  induce  the  court  to  marshall  the 
assets  in  any  manner  different  from  that  which  the  law  would 
otherwise  prescribe,  such  devises  or  parts  of  the  will  are  re- 
quired to  be  set  forth  in  the  petition  and  a  copy  of  the  will  is 
required  to  be  exhibited  to  the  court  and  the  assets  marshalled 
accordingly,  so  far  as  it  can  be  done  consistently  with  the 
rights  of  the  creditors.30 

Sec  219.     Sale  prevented,  how. 

An  order  for  the  sale  of  real  estate  will  not  be  granted  if 
any  of  the  persons  interested  in  the  estate  give  bond  to  the 
executor  or  administrator  in  a  sum  with  sureties  to  be  approved 
of  by  the  court  with  condition  to  pay  all  the  debts  mentioned 
in  the  petition  that  may  eventually  be  found  due  from  the 
estate  with  the  charges  of  administering  the  same  and  the 
allowances  in  money  to  the  widow  so  far  as  the  personal  estate 
of  the  decedent  will  be  insufficient  therefor.31 


29  See  Xo.  04  for  form  of  such  pe- 
tition where  fraudulent  conveyance 
is  to  be  set  aside  and  the  action  is 
in  the  common  pleas  court.  See 
No.  115  for  form  of  petition  in  pro- 
bate court.  See  Complete  Ohio  Pro- 
bate Practice.  Vol.  1,  §830,  for  a 
good  form  of  petition.  See  Xos. 
115,  140,  194,  204  and  262  for  forms 
of  answers  of  widow  demanding 
dower  by  metes  and  bounds  and 
waiving    dower    in    real    estate    and 


asking  endowment  out  of  proceeds 
of  sale:  see  also  Xo.  371  et  seq.  for 
procedure  where  the  action  is 
brought  for  the  purpose  of  having 
an  assignment  of  dower. 

soGen'l  Code,  §10791  ( U.  S. 
§6152). 

siGen'l  Code,  §107*5  (  K.  S. 
§6146).  See  Pockers  Complete 
Ohio  Practice,  Vol.  1,  §  828,  for 
form  of  order  of  court  when  such 
bond  is  given. 


§  220  MERWIKE    ON    REAL    ACTIONS.  222 

I:  has  been  held  that  where  an  order  of  the  court  was  ob- 
tained by  an  executor  for  the  sale  of  lands  to  pay  the  debts  of 
the  estate,  and  after  the  granting  of  the  order,  and  in  con- 
sideration that  the  executor  would  forbear  to  carry  it  into 
execution,  a  bond  was  executed  on  behalf  of  the  heirs  con- 
ditioned that  the  obligors  would  pay  the  debts  of  the  estate, 
that  the  bond,  although  not  in  strict  conformity  to  the  statute 
which  provides  that  if  such  a  bond  be  executed  before  the 
order  of  sale  no  order  shall  be  granted,  is  nevertheless  binding 
upon  the  obligors,  and  may  be  enforced  against  them  by  the 
executor.32 

Again,  a  widow,  having  a  dower  interest  in  the  real  estate 
of  her  deceased  husband,  is  sufficiently  interested  in  the  estate 
to  entitle  her,  in  connection  with  one  or  more  of  the  heirs  of 
said  estate,  to  give  bond  provided  for  by  Gen'l  Code 
§  10784  (R.  S.  §  6145),  to  obviate  a  sale  of  such  real  es- 
tate to  pay  debts,  etc.,  by  the  administrator;  and  having  in 
good  faith  given  such  bond,  and  as  required  by  the  conditions 
thereof,  paid  to  the  administrator  the  aggregate  amount  of  the 
valid  debts  of  the  decedent  and  the  charge  of  the  administra- 
tion, is  not  to  be  regarded  as  a  mere  volunteer,  but  is  entitled 
to  be  subrogated  to  the  rights  of  the  administrator,  and  fully 
reimbursed  from  a  fund  arising  from  the  sale  of  such  real  estate 
in  a  proceeding  in  partition  by  the  heirs.33 

Sec.  220.     Procedure  incidental  to  the  action. 

For  law  and  procedure  connected  with  the  issuing  and 
service  of  summons  in  the  action,  how  defendants  may  volun- 
tarily enter  their  appearance  to  the  action,  how  service  is  had 
by  summons  on  a  resident  of  the  county,  and  residents  of  other 
counties  in  the  State,  how  service  of  summons  is  made  by  pub- 
lication on  non-residents  of  the  Stale,  and  by  copy  of  the 
petition,  how  the  copy  of  the  newspaper  is  to  be  mailed  and 
the  dockel  entry  showing  the  same,  how  service  is  made  upon 
unknown  heirs  by  publication,  and  how  corporations,  partners, 
and  infants  are  served  and  how  and  when  guardians  ad  litem 
arc  appointed  to  defend  for  infants,  and  a  full  discussion  of 
the  same,  and  how  such  guardians  ad  litem  must  plead  and 
defend,  how  insane  persons  are  def(  wd^d  in  such  actions,  and 

32Davisson   v.   Burgess,   31    0.   S.  33  Corey  v.  Hayes.  13  C.  C.  185. 

78. 


223     SALE  OF  REAL  ESTATE  TO  I'AV  DECEDENT'S  DEBTS.   §221 

the  limes  when  summons  are  returnable  in  such  actions  and 
the  time  when  answers  and  cross-petitions  should  be  filed,  and 
the  filing  of  precipes  in  such  actions,  see  the  first  chapter  of 
this  book  for  full  discussion. 

Sec.  221.     Service  of  summons  and  waiver — Legal  guardians 
may  consent — Other  proceedings. 

Service  either  actual  or  constructive  may  be  made  in  the 
same  manner  as  other  civil  actions,  provided  that  if  all  person-; 
in  interest  consent,  in  writing,  to  the  sale,  service  of  process 
may  be  dispensed  with;  and  legal  guardians  may  sign  such 
consent  for  their  wards,  except  guardians  of  the  persons  only 
of  minors;  or  unless  otherwise  ordered  by  the  court,  the  sum- 
mons may  be  served  by  the  plaintiff  or  other  person  by  copy 
personally  and  the  return  of  such  service  must  be  verified  by 
the  oath  of  the  person  who  makes  the  same  and  all  proceedings 
in  the  action  in  either  court  will  be  the  same  as  in  other  civil 
actions  except  as  otherwise  herein  provided.34 

Sec.  222.     When  guardian  ad  litem  to  be  appointed — They  have 
no  power  to  consent. 

It  shall  not  be  necessary,  unless  the  prayer  of  the  petition 
for  a  sale  is  contested,  to  appoint  guardians  ad  litem  for  infant 
heirs  or  devisees  or  other  persons  having  the  next  estate  of  in- 
heritance from  the  deceased  who  are  defendants;  and  no  such 
guardian  will  have  authority  to  waive  notice  or  service  of 
summons.35 

Sec.  223.     Court  to  order  real  estate  to  be  sold,  when — Terms  of 
sale  and  conduct  of  trir  1  if  contested. 

If  the  court  is  satisfied  that  it  is  necessary  to  sell  real  estate 
of  the  deceased  to  pay  his  debts,  it  will  order  the  real  estate 
or  so  much  thereof  as  may  be  necessary  for  the  payment  of  the 

3*Gen'l     Code,     §10781      (R.     S.  pointing    guardians    ad     litem     and 

§6143).  their    answers.      See    Nos.    311,    312 

ssGen'l     Code,     §10782      (R.     S.  and  313  for  forms  for  appointment 

§6144).     See   §§39  to  44  inclusive,  of   trustee   to   defend   for   an    insane 

for      general      discussion      of      the  person  and  No.   143  for  form  of  or- 

law     applicable      to      the      appoint-  der    appointing    such    trustee,     and 

ment    and    duties    of    guardians    ad  No.  145  for  form  of  answer  of  such 

litem  generally.     See  Nos.  102,  103,  trustee. 
143  and  144  for  forms  of  orders  ap- 


§§  224-226  MERWINE    ON    REAL    ACTIONS.  224 

debts  to  be  sold  by  the  executor  or  administrator  upon  deferred 
payments  not  exceeding  two  years  with  interest.30 

The  proceeding,  if  contested,  is  tried  as  any  other  civil  action. 
The  same  rules  for  the  introduction  of  evidence  applies  as  in  a 
civil  action.  When  the  pleadings  present  an  issue  of  fact  re- 
quiring, on  demand  by  any  of  the  parties,  the  intervention  of 
a  jury,  the  probate  court  is  authorized  to  take  the  necessary 
steps  to  impanel  a  jury  for  that  purpose,  by  issuing  an  order 
for  the  clerk  of  the  common  pleas  court  to  secure  a  jury  from 
the  jury  box.37 

In  such  actions  there  is  grave  doubt  whether  an  issue  of  fact 
arises  for  the  jury  to  decide.  It  is  for  the  court  to  decide 
whether  there  are  debts  which  demand  a  sale  of  the  real  estate. 
It  has  been  held  that  where  the  action  is  begun  in  the  common 
pleas  court,  the  parties  are  not  entitled  to  a  jury  and  the 
action  is  appealable/1" 

Sec.  224.     Heir  by  private  sale  of  the  real  estate  will  not  defeat 
right  of  personal  representative  to  sell. 

In  a  well  considered  case  it  was  held  that  it  is  no  bar  to  an 
action  by  an  administrator  to  pay  debts,  that  the  heir  lias, 
without  an  order  of  the  court,  sold  the  same  at  private  sale 
and  applied  the  proceeds  in  satisfaction  of  preferred  claims/"-' 

Sec.  225.     The  estate  of  the  heirs  in  the  lands  set  off  to  the 
widow  to  be  sold. 

Tin-  court  may  include  in  its  order  of  sale  the  title  of  the 
heirs  or  devisees  of  the  deceased  in  the  premises  set  off  to  the 
widow  for  her  dower  which  may  be  sold  subject  to  the  life 
estate  of  the  widow  therein.40 

Gee.  226.     The  whole  of  the  real  estate  to  be  sold  when  a  partial 
sale  would  injure  the  residue. 

If  it  be  represented  in  such  petition  and  appear  to  the  court, 
that    it    is  necessary   to   sell    some    part    of   the    real   estate   and 

■■•■'••  Gen'1     Code.     §10786      (R.     S.  tice,    Vol.    1.    §409,    for    order    and 

56147).      See    Nos.    105,    L26,    128,  form  to  draw  jury, 

ltl    fcr   forms.     See    No.    162    form  ssDalton   v.   Davis,   is  C.  C.  87S. 

of   onicr    of    court    fixing    price    ai  soSidener  v.  Bawes,  .'!7  <).  s.  532. 

which  real  estate  maj    be  sold.  40r.cn']     Code,     §10787      (R.     S. 

37Doan   v.    Bitely,   49   O.    B.   588.  §6148). 
See    Complete    Ohio    Probate    l'rac- 


225     SALE  OF  REAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.    §  227 

that  by  such  partial  sale  the  residue  of  the  estate  or  some 
specific  part  or  piece  thereof  would  be  greatly  injured,  the 
court  nay  order  a  sale  of  the  whole  of  the  estate  or  of  such 
part  thereof  as  the  cour!  shall  think  necessary  and  most  for 
the  interest  of  all  concerned  therein.41 

Sec.  227.     When  further  bond  will  be  required  of  the  admin- 
istrator or  the  executor. 

When,  in  cases  named  "in  the  next  preceding  section,  the 
executor  or  administrator  is  ordered  to  sell  more  than  is  neces- 
sary for  the  payment  of  the  debts,  he  will  be  required  before 
the  sale  to  give  bend  with  sufficient  sureties  payable  to  the 
estate,  conditioned  to  account  for  all  the  proceeds  of  the  sale 
that  shall  remain,  at'  er  the  payment  of  the  debts  and  charges 
for  which  the  land  must  be  sold  and  to  dispose  of  the  same 
according  to  law.42 

The  court  may  also  require  of  any  executor  or  administrator, 
if  it  deem  it  necessary,  before  snch  sale  to  give  an  additional 
administration  bond  to  secure  the  further  assets  arising  from 
the  sale  of  the  real  estate  and  the  bond  mentioned  in  this  sec- 
tion, and  the  bond  mentioned  in  the  next  preceding  section, 
shall,  when  so  ordered  to  be  given,  be  given  in  the'eourt  through 
which  the  letters  were  issued,  and  if  the  action  is  pending  in 
another  court,  the  latter  court  will  proceed  no  further  till  there 
is  filed  therein  a  certificate  from  the  former  court  under  the 
seal  thereof  that  such  bond  has  been  given  as  ordered.43 

Sec.  228.     Awarding  of  costs  when  there  are  objections  to  the 
sale. 

If  any  party,  in  answer,  object  to  the  granting  of  an  order 
for  the  sale  of  the  real  estate  by  an  executor  or  administrator 
and  on  hearing  it  is  made  to  appear  to  the  court  that  either 
the  petition  or  the  objection  thereto  is  unreasonable,  it  may.  in 
its  discretion  award  costs  to  the  party  prevailing  -on  that 
issue.44 


"Gen'l     Code,     §10788      (R.     S.  *3  Gen'l     Code,     §10790      (R.     S. 

§6149).  §6151).     See  No.   127  for  form  for 

« Qen'1     Code,     §10789      (R.     S.       this  bond. 
§6150).  44Gen'l     Code,     §10792      (R.     S. 

§6153). 


§§  229,  230  MERWINE    ON    REAL    ACTIONS.  226 

Sec.  229.     Appraisement  when  no  dower  is  to  be  assigned. 

The  order  of  sale  and  appraisement  may  be  made  at  the 
same  time. 

If  the  deceased  did  not  leave  a  widow  entitled  to  dower  in 
the  estate  to  be  sold  and  an  appraisement  of  such  real  estate 
is  contained  in  the  inventory,  the  court  may  order  a  sale 
according  to  said  appraisement  or  order  a  new  appraisement. 

If  the  court  do  not  order  a  new  appraisement,  the  appraise- 
ment set  forth  in  the  inventory  will  be  deemed  the  appraised 
value  of  the  real  estate ;  but  if  the  court  order  a  new  appraise- 
ment the  value  returned  by  such  appraisers  will  be  deemed  the 
appraised  value  of  the  real  estate.  The  order  of  sale  and  the 
order  for  the  appraisement  may  be  made  at  the  same  time  if 
no  assignment  of  dower  is  required.45 

The  subject  of  appraisement  is  discussed  in  another  part  of 
this  work.  Reference  is  made  to  the  same  where  will  be  found 
&  statement  of  the  law  as  to  appraisements  under  executions 
and  orders  of  sales  of  real  estate,  together  with  a  review  of 
the  cases  under  this  subject. 

Sec.  230.  Appraisement  of  the  real  estate — Duty  of  appraisers 
as  to  dower  and  homestead — Where  lands  in  two  or  more 
counties. 

Except  where  there  has  been  a  valuation  of  the  real  estate 
in  the  inventory,  and  the  court  dispenses  with  another  ap- 
praisement, it  is  made  the  duty  of  the  court,  upon  finding  that 
a  sale  is  necessary,  to  appoint  three  judicious,  disinterested 
men  of"  the  vicinity  who  are  freeholders,  to  appraise  the  lands 
at  their  true  value  in  money,  and  if  the  deceased  left  a  family 
homestead  and  a  widow  or  minor  child  or  children,  or  both, 
entitled  to  have  a  homestead  set  od'  pursuant  to  the  provisions 
of  Gen'l  Code  §§11732,  11733  (R.  S.  §5437),  the  court  must 
order  the  appraisers  to  first  proceed  to  set  off  and  assign  such 
homestead,  and  if  the  deceased  left  a  widow  entitled  to  dower 
in  the  premises,  the  court  must  also  order  said  freeholders  to 
set  off  mikI  assign  to  her  in  each  or  in  one  or  more 
of    the     tracts    of    land     by     metes    and     hounds    one       equal 

"•r'On"l     Code,     §  10703      ( R.     8.       and    !<>!>   and    125   for  form  eonnrm- 
§0154).      See    Niis.    I(IC>   and    122    for        in<,'    appraisement, 
form    for    order    of    appraisement; 


227 


SALE  OF  REAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.    §  230 


third  of  the  whole  lands  in  which  she  is  entitled  to  dower,  as 
and  for  such  dower  and  to  appraise  the  whole  premises  either 
as  a  whole  or  in  parcels  subject  to  such  homestead  and  dower, 
or  in  case  there  is  no  homestead,  then  subject  to  such  dower 
so  assigned,  and  in  case  there  is  no  such  dower  then  subject 
to  such  homestead.  But,  if  on  view,  the  appraisers  find  that 
the  dower  cannot  be  assigned  they  must  then  assign  such  dower 
or  especially  as  of  the  rents  and  profits,  and  if  the  lands  lie 
in  two  or  more  than  one  counties,  the  court  may,  if  it  thinks  fit, 
appoint  appraisers  in  more  than  one  of  the  counties.  In  all 
cases  a  copy  of  the  order  to  be  executed  must  be  issued  to  the 
executor  or  administrator  and  any  lands  subject  to  such  home- 
stead and  dower,  or  either,  may  be  sold  pursuant  to  the  provisions 
of  this  chapter.47 

The  subject  of  dower  is  fully  discussed  in  another  chapter  in 
this  book.  By  turning  to  this  chapter  the  reader  will  find  a  dis- 
cussion of  the  statute  on  the  subject  of  dower,  together  with  a 
careful  review  of  the  decisions  in  this  State  on  the  subject.48 
The  homestead  statute  mentioned  above  is  as  follows: 
"On  petition  of  executors  or  administrators  to  sell,  to  pay 
debts,  the  lands  of  a  decedent  who  has  left  a  widow,  or  a  minor 
child,  unmarried,  and  composing  part  of  the  decedent's  family 
at  the  time  of  his  death,  the  appraisers  shall  proceed  to  set  apart 
a  homestead  as  provided  in  the  next  section,  and  the  same  shall, 
except  as  otherwise  provided  in  Gen'l  Code  §§  1079-1,  10795, 
10796,  (R.  S.  §  6155),  remain  exempt  from  sale  on  execution, 
and  exempt  from  sale  under  any  order  of  the  court 
so  long  as  the  widow,  if  she  remains  unmarried,  or  any  unmar- 
ried minor  child  of  said  decedent  resides  thereon;  provided,  that 
in  all  case  where  the  homestead  has  been  or  shall  be  sold  to  pay 
any  lien  which  precludes  the  allowance  of  a  homestead,  the  resi- 
due of  the  proceeds,  not  exceeding  five  hundred  dollars,  shall  be 


47  Gen'l  Code,  §10794  (R.  S. 
§6155).  See  No.  150  for  form  of 
appraisement  subject  to  dower  and 
homestead.  See  No.  150  for  form 
for  order  assigning  dower  and  home- 
stead. See  Rocket's  Complete  Ohio 
Probate  Practice.  Vol.  1.  S  S4(i.  for 
answer  of  widow  consenting  to  sale 
of  real  estate,  and  asking  to  be  en- 
dowed out  of   the   proceeds  of  sale. 


See  same  section  for  answer  of  the 
widow  setting  up  dower  and  home- 
stead out  of  proceeds  of  sale.  See 
§§  102  to  100  inclusive  for  discus- 
sion of  the  subject  of  appraisements. 
4S  See  §  452  rt  seq.  subject  Dow- 
er. See  No.  365  et  seq.  for  forms 
and  procedure  in  assignment  of 
dower. 


§§231,232 


MERWINE    ON    REAL    ACTIONS. 


228 


paid  to  the  widow,  or  in  ease  there  be  no  widow,  to  the  minor 
child,  unmarried,  in  lieu  of  a  homestead,  on  her  or  said  minor 
child's  application,  in  person,  or  by  agent,  attorney  or  guardian.49 

If  the  deceased,  at  the  time  of  his  death,  was  not  the  owner  of 
a  homestead,  no  allowance  can  be  made  to  the  widow  in  lieu  of 
a  homestead.50 

The  widow  should  make  her  application  for  homestead  allow- 
ance in  the  proceeding  in  due  time,  or  she  may  waive  the  right 
to  demand  it.51 

If  dower  is  assigned  during  the  year  first  after  decedent's 
death,  the  right  of  the  widow  to  remain  in  the  mansion  house 
for  the  rest  of  said  years  is  defeated,  but  this  right  of  the  widow 
as  to  the  mansion  house,  is  not  defeated  by  the  administrator's 
sale  of  the  real  estate  to  pay  debts,  unless  dower  is  assigned  or 
she  receives  same  and  elects  to  take  out  of  the  proceeds. 


Sec.  231.  Dower  especially  assigned  to  be  a  charge  on  the 
land. 
If  the  appraisers  shall  have  assigned  dower  specially  of  the 
rents  and  profits  and  the  purchaser  takes,  by  the  deed  of  the 
(  xeeutor  or  administrator',  the  lands  upon  which  such  dower  has 
been  assigned,  it  is  made  the  duty  of  the  court  to  make  such  order 
as  will  secure  to  the  widow  a  charge  upon  such  lands  for  the 
dower  so  assigned.52 


Sec.  232.     Vacancy  in  appraisers — How  filled. 

When  any  person  appointed  by  the  court  as  an  appraiser  fails 
to  discharge  his  duties,  the  probate  court  or  any  justice  of  the 
peace  in  the  county  in  whiah  the  lands  to  be  appraised  are 
situated,  may,  at  the  instance  of  the  executor  or  administrator- 
appoint  an  appraiser,  of  which  appointment,  the  officer  appoint- 


isGen'J  Code,  §  11732  (R.  S. 
g  5  i:;7  i.  Sec  also  Taylor  v.  Thorn, 
29  0.  S.  569;  Wherle  v.  Wlie-'-,  3!) 
0.  S.  65;  Schiler  v.  Miller.  45  O. 
S.  525;  Wolverton  v.  Paddock,  3  C. 
C.  Ins;  Bliss  v.  Fuhroman,  6  C.  C. 
203. 

bo  Wohvrt y  v.  Paddock,  3  C.  C. 
488.  It  is  '-.w  that  the  provisions 
of  Gen'1  Code,  §  1173s  i  R.  S. 
§5441)  only  apply  to  exemption  of 
the  widow  out  of  her  own  property 


against  her  own  debts,  and  thai  she 
is  not  entitled  t<>  any  allowance  in 
lieu  of  a  homestead  out  of  her  hus- 
band's property."     Ibid. 

•r'i  Bliss  v.  Fuhroman,  6  C.  C.  203; 

52  Gen'l  Code  §10808  (R.  S. 
§6164).  No.  124  for  form  assign 
ing  dowti-  by  metes  and  hounds.  See 
No.  150  for  order  allowing  dower 
out  of  proceeds  of  sale  of  real  es- 
tate. 


229     SALE  OF  HEAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.    §  233 

ins,  must  make  and  sism  a  certificate  which  must  be  returned 
with  the  appraisement,  or  the  executor  or  administrator  may 
apply  to  the  court  making1  the  order  of  appraisement  and  have 
another  appraiser  appointed  thereby.53 

Sec.  233.  Oath  of  appraisers— Certificate  thereof — View  and 
return — Compensation  of  appraisers. 

The  appraisers  must  be  sworn  by  some  officer  authorized  to 
administer  oaths  and  a  certificate  thereof  must  be  inserted  in  or 
annexed  to  their  return,  and  they  must  afterward,  upon  actual 
view,  perform  the  duties  required  of  them  by  the  order  of  the 
court  and  make  return  of  their  proceedings  in  writing  to  the 
court.54 

The  appraisers  are  each  entitled  to  receive  $1.00  per  day  for 
services  performed  by  them  in  the  county  in  which  they  reside 
and  $2.00  per  day  for  services  performed  without  such  county.55 

This  subject  is  treated  fully  in  the  second  chapter  of  this 
work.  A  review  of  the  cases  and  the  statutes  relating  to  ap- 
praisements, where  real  estate  is  sought  to  be  sold  under  execu- 
tions and  other  orders  of  sales,   will  be   found  there.56 

Sec.  234.     The  notice  of  sale  by  the  executor  or  administrator. 

The  executor  or  administrator  must,  if  the  sale  is  to  be  public, 
give  notice  of  the  time  and  place  of  sale  by  advertising  the  same 
at  least  four  weeks  successively  in  some  newspaper  printed  in 
the  county  where  the  lands  are  situated ;  or  if  no  newspaper  be 
printed  therein,  by  advertisements  posted  up  in  at  least  five 
public  places  in  the  county  four  weeks  before  the  day  of  sale.57 

Sec.  235.— Notice  of  sale  in  German  or  Bohemian  newspaper — 
Error  in  translation  to  be  disregarded. 
In  any  county  wherein  is  published  and  printed  a  newspaper 
of  the  German  or  Bohemian  language,  and  which  has  a  circula- 
tion of  at  least  five  hundred  and  fifty  copies  to  bona  fide  sub- 
scribers within  the  county,  the  notice  required  in  the  preceding 
section  may,  if  the  appraised  value  of  the  premises  to  be  sold 

53Gen'l     Code.  §10707      (E.     S.  55  Gen']     Code.      §10799      (R.     S. 

§6150).     See  No.  157   for  form  for       §0158). 
appointment.  "  See  §  103  and  following. 

's4Gen'l     Code,  §10798      (R.     S.  ™  Gen'l     Code,     §10800      (R.     S. 

§6157).  §6159). 


§§  236,  237  MERWINE    ON    REAL    ACTIONS.  230 

exceed  five  hundred  dollars,  in  addition  to  the  publication  therein 
required,  be  published  in  such  newspaper  in  the  German  or 
Bohemian  language  for  the  same  time  and  in  the  same  manner, 
and  if  two  or  more  such  newspapers  are  published  or  printed 
therein,  the  publication  may  be  in  either;  but  the  court  ordering 
such  sale  must,  upon  motion  of  any  party  to  such  action,  and 
upon  good  cause  being  shown  therefor,  dispense  with  such  publi- 
cation; but  no  error  or  mistake  in  translation  or  in  any  publica- 
tion authorized  by  this  section  can  delay  proceedings  or  affect 
the  title  of  the  property  sold,  and  if  such  error  or  mistake  occurs 
by  the  negligence  of  the  publisher,  he  shall  receive  no  compensa- 
tion for  the  publication.58 

Sec.  236.     For  what  amount  the  lands  may  be  sold — New  ap- 
praisement oi  order  to  sell  at  fixed  price. 

The  lands,  if  improved,  cannot  be  sold  for  less  than  two-thirds 
of  the  appraised  value,  and  if  not  improved  for  not  less  than 
one-half  of  the  appraised  value;  but  after  being  twice  offered 
for  sale  the  court  may  direct  the  amount  for  which  said  lands 
may  be  sold,  or  may  set  aside  the  appraisement  and  order  a  new 
one.59 

Sec.  237.  When  sale  of  such  real  estate  to  be  at  public  or  pri- 
vate sale — Sale  in  parcels. 
Tin1  sale  must  be  made  at  public  vendue  at  the  door  of  the 
court  house  in  the  county  in  which  order  of  sale  shall  be  made  or 
at  such  other  place  as  the  court  may  direct;  provided,  however, 
that  it  is  7nade  to  appear  to  the  court  that  it  will  be  more  for  the 
interest  of  said  estate  to  sell  such  real  estate  at  private  sale,  the 
court  may  authorize  said  petitioner  to  sell  the  same  either  in 
whole  or  in  part  for  cash  in  hand  or  upon  deferred  payments 
not  exceeding  two  years  with  interest;  and  in  no  case  can  such 
real  estate  be  sold  at  private  sale  for  less  than  the  appraised 
value  thereof;  provided,  however,  that  where  any  order  for 
private  sale  has  been  or  may  hereafter  be  issued  under  the  pro- 
visions of  this  section,  the  court  may,  upon  motion  and  showing 

Mfipn'l     Code,     §10800      (R.     S.  form  of  affidavit  in  support  of  mo- 

§6159).  tion  to  set  aside  appraisement.     See 

-■■><;, ■n-l     Code,     §10802      (11.     S.  No.    160  for  form  setting  aside  ap- 

6160).      See    No.    158   for  motion  to  praisement. 
set  aside  appraisement.     No.  150  for 


231     SALE  OF  REAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.   §238 

by  any  person  interested  in  the  proceeds  of  such  sale,  require 
the  petitioner  to  return  such  order  if  the  premises  have  not  been 
sold,  and  thereupon  the  court  may  issue  an  order  for  the  sale  of 
such  premises  at  public  sale  as  provided  in  this  section ;  and  if 
the  court,  upon  the  showing  of  any  person  interested,  find  that  it 
•  will  be  to  the  interest  of  such  estate,  he  may  order  a  new  appraise- 
ment of  such  premises  and  a  sale  thereof  in  parcels.60 

Gee.  238.     Return  of  sale  to  court — Confirmation — Acceptance 
of  cash — Sales  of  notes  and  distribution. 

The  executor  or  administrator  must  make  return  of  his  pro- 
ceedings under  the  order  of  sale;  and  the  court  after  having 
carefully  examined  such  return  and  being  satisfied  that  the  sale 
has  in  all  respects  been  legally  made,  must  confirm  the  sale  and 
order  the  executor  or  administrator  to  make  a  deed  to  the  pur- 
chaser; and  may,  in  the  order,  require  that  before  the  delivery 
of  such  deed,  the  deferred  installments  of  the  purchase  money 
shall  be  secured  by  mortgage;  provided,  that  if  after  such  sale 
is  made,  the  purchaser  offers  to  pay  the  full  amount  of  the  pur- 
chase money  in  cash  the  court  may  order  that  the  same  be 
accepted  if  for  the  best  interest  of  the  estate,  and  direct  its  dis- 
tribution ;  and  the  court  may  direct  the  sale  without  recourse,  of 
all  or  any  of  the  notes  taken  for  deferred  payments,  if  for  the 
best  interest  of  the  estate,  at  not  less  than  their  face  value,  with 
accrued  interest,  and  direct  distribution  of  the  proceeds.01 

Sec.  239.     Executor's  or  administrator's  deed  evidence  of  the 
validity  of  the  sale — What  estates  shall  pass  by  it. 

The  deed  of  the  executor  or  administrator,  made  in  pursuance 
of  the  order  of  the  court,  will  be  received  in  all  courts  as  prima 
facie  evidence  that  the  executor  or  administrator  in  all  respects 
observed  the  directions  and  complied  with  the  requisitions  of 
the  law,  and  said  deed  will  vest  the  title  in  the  purchaser  in  like 
manner  as  if  conveyed  by  the  deceased  in  his  lifetime.62 

™Oen'l     Code,     §10803      (R.     8.  ci  Gen'l     Code,     §10804      (R.     S. 

§6161).      See    No.    !)4    et    seq.    for  §Gl(i2).     See  Nos.   114  and  138  for 

forms    of    procedure   where    the    sale  forms  of  confirmation  of  sales. 

is    public.      See  No.    116   et   xoj.   for  62  Gen'l     Code,      §10807      ( R.     S. 

forms    for    the    procedure    when    the  §6163).      See   No.    115   for   form   of 

sale   is   private.     See  Nos.    14(i.    147  deed    at    public    sale.      See    No.    13!) 

and    148    for    form    of    application,  for  form  of  deed  at  private  sale, 
affidavit     and     order     to     plat     into 
building   lots  before   sale. 


§§  240-242  MERWINE   ON   REAL   ACTIONS.  232 

Sec.  240.     How  money  arising  from  sale  of  land  to  be  applied. 

The  money  arising  from  the  sale  of  real  estate  must  be  applied 
in  the  following  order : 

First — To  discharge  the  costs  and  expense  of  the  sale,  and  the 
per  centum  and  charge  of  the  executor  or  administrator  thereof, 
for  his  administration  of  the  same. 

Second — To  the  payment  of  mortgages  and  judgments  against 
the  deceased,  according  to  their  respective  priorities  of  lien,  so 
far  as  the  same  operates  as  a  lien  on  the  estate  of  the  deceased 
at  the  time  of  his  death,  which  shall  be  apportioned  and  deter- 
mined by  the  court  on  reference  to  a  master  or  otherwise. 

Third — To  the  discharge  of  claims  and  debts  in  the  order 
mentioned  in  this  title.03 

Sec.  241.     When  sale  is  authorized  by  will  no  order  of  sale 
required. 

If  any  executor  or  administrator  duly  qualified  is  authorized 
by  will  or  devise  to  sell  real  estate,  no  order  will  be  required  by 
the  court  to  authorize  him  to  act  in  pursuance  of  'he  powers 
vested  in  him  by  such  will.64 

Sec.  242.  When  foreign  executor  or  administrator  may  be  au- 
thorized to  sell  real  estate. 
When  an  executor  or  administrator  is  appointed  in  any  other 
State,  Territory  or  foreign  country,  of  the  estate  of  any  person 
dying  out  of  this  State,  and  no  executor  or  administrator  thereon 
be  appointed  in  this  State,  the  foreign  executor  or  administrator 
may  file  an  authenticated  copy  of  his  appointment  in  the  probate 
court  of  the  count}7  in  which  there  may  be  any  real  estate  of  the 
deceased,  together  with  an  authenticated  copy  of  "the  will  if  there 
be  one ;  after  which  he  may  be  authorized  under  an  order  of  the 
court  to  sell  real  estate  for  the  payment  of  the  debts  or  legacies 
and  charges  of  administration  in  the  same  manner  and  upon  the 
same  terms  and  conditions  as  are  prescribed  in  the  case  of  an 
executor  or  administrator  appointed  in  this  State  excepting  in 
the  particulars  in  which  a  different  provision  is  hereinafter 
made.63 

esGen'l     Code,     £10800      (R     S.  '••■  On'l     Code,     §10813      (R.     S. 

§6165).  §0108). 

8*Gen'l     (ode,     §10812     (R.     S. 
§  6167). 


233     SALE  OF  REAL  ESTATE  TO  PAY  DECEDENT 's  DEBTS.   §243 

Sec.  243.     When   foreign   executor   or   administrator   to   give 
bond. 

When  it  is  made  to  appear  to  the  court  granting  the  order  of 
sale  that  such  foreign  executor  or  administrator  is  bound  with 
sufficient  surety  or  sureties  in  the  State  or  country  in  which  he 
was  appointed  to  account  for  the  proceeds  of  such  sale  for  the 
payment  of  debts  or  legacies  and  charges  of  administration,  and 
a  copy  of  such  bond,  duly  authenticated,  shall  be  filed  in  court,  no 
further  bond  for  that  purpose  will  be  required  of  him  here ;  other- 
wise before  making  such  sale  he  will  be  required  to  give  bond 
with  two  or  more  sufficient  sureties  to  the  State  of  Ohio  with 
the  condition  to  account  for  and  dispose  of  the  said  proceeds 
for  the  payment  of  the  debts  or  legacies  of  the  deceased  and  the 
charges  of  administration  according  to  the  laws  of  the  State  or 
country  in  which  he  was  appointed.60 

Sec.  244.  Foreign  executor  or  administrator  to  give  further 
bond  to  account  for  surplus,  when— Surplus  considered  real 
estate,  when. 

When  such  foreign  executor  or  administrator  is  authorized  by 
order  of  the  court  to  sell  more  than  is  necessary  for  the  payment 
of  debts  and  legacies  and  charges  of  administration  as  herein- 
before provided,  he  must  before  making  the  sale  give  bond  with 
two  or  more  sufficient  sureties  to  the  State  of  Ohio,  with  the 
condition  to  account  before  the  court  for  all  the  proceeds  of  the 
sale  that  shall  remain  after  payment  of  the  debts,  legacies  and 
charges,  and  to  dispose  of  the  same  according  to  law.67 

In  all  cases  of  a  sale  by  an  executor  or  administrator  of 
part  or  the  whole  of  the  real  estate  of  the  deceased  under  an 
order  of  court,  whether  such  executor  or  administrator  have  been 
appointed  in  this  State  or  elsewhere,  the  surplus  of  th>  proceeds 
of  the  sale  remaining  on  the  final  settlement  of  the  account  will 
be  considered  as  real  estate,  and  will  be  disposed  of  accord- 
ingly.68 

ee  Gen'l     Code,     §10814      (R.     S.  cs  Gen'l     Code,     §10816      (R      S 

§0100).  §0171). 

c- Gen'l     Code      §10815      (R.     S. 
§0170). 


FORMS. 


PROCEDURE  IN  SALE  OF  REAL  ESTATE  BY  AN  ADMIN- 
ISTRATOR TO  PAY  DECEDENT'S  DEBTS. 


Forms. 

94.  The  petition   when   the  action 

is  in  the  Court  of  Common 
Pleas,  and  when  the  action 
also  seeks  to  sell  land  of 
decedent,  conveyed  by  him 
in  fraud  of  creditors. 

95.  The  precipe. 

96.  The   summons    for    defendants 

in  the  county  where  the 
action   is  brought. 

97.  The    sheriff's     return     of    the 

summons. 

98.  Summons   for   defendants   liv- 

ing in  a  county  other  than 
where  the   petition  is  filed. 

99.  The     sheriff's     return     of     his 

proceedings  under  said 
summons. 

100.  The  answer  and  cross-petition 

setting  up  a  building  and 
loan  mortgage. 

101.  Waiver  of  summons  and  entry 

of  appearance. 

102.  An  answer  in  such  case. 


Forms. 

103.  Entry  appointing  guardian  ad 

litem. 

104.  Answer  of  guardian  ail  litem. 

105.  Decree    setting    aside    fraudu- 

lent conveyance   and  order- 
ing  sale   of   real   estate. 
10(1.     The  order  of  appraisement. 

107.  Administrator's   return  of  his 

proceedings       under       said 
order. 

108.  The  oath  of  the  appraisers. 

109.  Entry  confirming  the  appraise 

.nent  and  order  of  sale. 

110.  The     order     of     sale     directed 

from    the   clerk    to   the   ad- 
ministrator. 

111.  The    administrator's    publica- 

tion of  sale  of  real    estate. 

112.  The  proof  of  said  publication. 

113.  The  administrator's  return  of 

his  proceedings  under   said 
order  of  sale. 

114.  Confirmation     of     sale — Order 

for  deed  and  distribution. 

115.  Form    of    the    administrator's 

deed   in   such   case. 


No.  94.  The  petition  when  the  action  is  in  the  Court  of  Com- 
mon Pleas,  and  when  the  action  also  seeks  to  sell  land  of 
decedent,  conveyed  by  him  in  fraud  of  creditors. 


Court  of  Common  Pleas, 


County,  Ohio. 


Petition  No. 


A.    H.    J.,    as    administrator  with    the 

will  annexed  of  J.  A.  J.,  deceased,   Plaintiff, 

vs. 
E.  M.,  E.  J.,  a  minor,  J.  J.,  a  minor, 
T.   J.,   J.   D.   E.,   D.  J.,  J.   M.   J., 
M.  J.  E.,  I.  J.,  and  The 

The    said    A.    H.    J.,    as    administrator    with    the    will    annexed    of 


Company,  Defendants, 


J.    A.   J., 


plaintiff,   for    petition   herein    says   that   on   the 

— ,  19 ,  the  said  J.  A.  J.,  being  then  a  resident  of 

County,  Ohio,  departed  this  life,  having,  on  the  -    —  da"'  of 


day  of 


234 


235  FORMS. 

19 ,  executed  his  last  will  and  testament  which  he  left  and  which 

last  will  and  testament  was  by  the  Probate  Court  of  County, 

Ohio,  duly  admitted  to  probate  and  record  in  said  court  on  the  

day  of  ,  19 ;  that  one  I.  J.,  having  been  named  as  execu- 
tor of  said  will  refused  to  act  as  such  and  said  A.  H.  J.  was  by  said 
court  duly  appointed  and  qualified  as  administrator  of  said  estate  with 
the  will  annexed,  and  has  entered  upon  the  discharge  of  said  duties; 

that  on  the  day  of  ,  19 ,  the  said  J.  A.  J.,  being  then 

deeply  in  debt  and  insolvent,  with  the  intention  to  hinder,  delay, 
and  defraud  his  creditors,  by  a  certain  pretended  deed  of  gift,  bearing 

that  date,   for  the  purported   consideration   of   $ ,   fraudulently 

attempted  to  transfer  and  convey  to  the  said  J.  D.  E.,  his  heirs  and 
assigns    forever,    the    following    described    real    estate,    situate    in    the 

county  of  ,  in  the  State  of  Ohio,  and  in  the  city  of  , 

and  more  particularly  described  as  follows,  to-wit:  (Here  describe 
real    estate). 

Plaintiff  further  avers  that  there  was  no  consideration  for  said  con- 
veyance to  said  J.  D.  E.,  but  that  the  same  was  in  fact  without 
consideration,  and  with  no  intent  to  actually  vest  the  title  of  said 
lands  in  said  J.  D.  E.,  but  to  cover  up  the  same  from  the  creditors 
of  said  J.  A.  J.,  and  to  hinder,  delay,  and  defraud  them  in  the 
collection  of  their  said  claim,  and  that  the  said  deed  is  fraudulent 
and  absolutely  void. 

Plaintiff   further   says   that   valid   debts  of  decedent,    amounting  to 

$ ,    have   been    presented    to    said    administrator   for   payment; 

that  the  costs  of  administration  will  amount  to  $ ,  being  wholly 

insufficient  to  pay  the  debts  and  the  costs  of  administration,  and  it  is 
therefore  necessary  to  sell  said  real  estate  to  pay  the  debts  aforesaid. 

Plaintiff  further  avers  that  the  said  defendants  D.  J.,  J.  M.  J.,  M.  J. 
and  I.  J.  are  the  only  heirs  at  law  of  the  said  J.  A.  J.,  deceased, 
and   have   the    next   estate    of    inheritance;    that   the    said    defendants, 

E.  M.,  E.  J.,  T.  J.,  J.  J.  and  the  Company,  have  some  claim 

against  said  real  estate,  and  the  said  plaintiff  prays  that  they  be 
required  to  answer  this  petition  and  set  out  what  claim  they  have 
or  be  forever  barred. 

Wherefore  plaintiff  prays  that  said  purported  transfer  and  con- 
veyance of  said  real  estate  to  said  J.  D.  E.  be  set  aside  and  held  for 
naught,  and  that  he  may  be  ordered  to  sell  said  premises  to  pay  said 
debts  according  to  the  statute  in  such  case  made  and  provided  and 
for  all  such  other  and  further  relief  as  equity  and  the  nature  of  the 

case  may  require.  , 

Attorney  for  Plaintiff. 

The   petition   should   be   verified   as   in    other  cases. 

No.  95.     The  precipe. 

To  the  Clerk: 

Issue  summons  to  the  sheriff  of County,  Ohio,  for  J.  D.  E., 

D.  J.,  J.   M.   J.   and  M.  J.  E.,  and  to  the  sheriff  of  Cou 


MERWINE    ON    REAL,    ACTIONS.  236 

for  T.  J.,  E.  J.,  J.  J.,  E.  M.,  and  I.  J.,  endorse,  "An  action  brought 
by  an  administrator  to  set  aside  a  conveyance  made  in  fraud  of 
creditors  and  to  sell  real  estate  to  pay  debts  of  decedent." 


Attorney   for   Plaintiff. 


No.  96.     The  summons  for  defendants  in  the  county  where  the 
action  is  brought. 

The  State  of  Ohio,  County,   ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  commanded  to  notify  J.  D.  E.,  D.  J.,  J.  M.  J.  and  M.  J.  E. 
that  they  have  been  sued  by  A.  H.  J.,  as  administrator  with  the 
will   annexed   of   J.   A.    J.,   deceased,    in   the   Court   of   Common   Pleas 

of   : County,    and    that    unless    they    answer    by    the   

day  of  in  the  year  of  our  Lord    one  thousand  nine  hundred 

and    ,    the    petition    of    said    plaintiff    against    them,    filed    in 

the  clerk's  office  of  said  county,  such   petition  will  be  taken  as  true 
and  judgment  rendered  accordingly. 

You  will  make  due  return  of  this  summons  on  the  day 

0f   in    the    year    of    our   Lord     one    thousand    nine    hundred 

and  .  , 

Clerk  of  Common  Pleas  Court,  County,  Ohio. 

No.  97.     The  sheriff's  return  of  the  summons. 

Sheriff's  Return. 

State  of  Ohio,  County,  ss. : 

Received   this  writ  on  the  day   of  in   the  year 


of   our   Lord    one   thousand    nine   hundred   and   at   

o'clock  m..   and    pursuant   to   its   command   on    the   

day   of  in   the  same   year,   I   served  the   same   by  personally 

handing  a  true  and  duly  certified  copy  of  this  writ,  with  all  the 
endorsements  thereon,  to  the  following  of  the  within  named  defend- 
ants M.  J.  E. 

I  also  on  the  same  day  left  a  true  and  duly  certified  copy  of 
this  writ,  with  all  the  endorsements  thereon,  at  the  usual  place 
of  residence  of  each  of  the  following  within  named  defendants,  J. 
D.  E..  and  J.  M.  J.,  and  after  due  and  diligent  search  I  was  unable 
to    find    the    following    within    named    defendant,    D.    J.,    within    my 

bailiwick.  , 

Uhnriff    of   County,    0. 

No.  98.     Summons  for  defendants  living  in  a  county  other  than 
where  the  petition  is  filed. 

The  State  of  Ohio,  County,  ss. : 

To  the  Sheriff  of County,  Greeting: 

You  are  comanded  to  notify  T.  J.,  E.  J.,  J.  J.,  E.  M.  and  I.  J. 
that   they    have    been    sued    by    A.    H.    J.,    as    administrator    with    the 


237  FORMS. 

will   annexed  of  J.   A.    J.,   deceased,   in   the    Court   of   Common   Pleas 

of   County,    and    that    unless    they    answer   by    the    

day  of  ,  in  the  year  of  our  Lord    one  thousand  nine  hundred 

and  ,  the  petition  of  said  plaintiff  against  them  filed  in  the 

clerk's  office  of  said  county,  such  petition  will  be   taken  as  true  and 
judgment    rendered    accordingly.      You   will    make    due    return   of   this 

summons   on   the  day   of  ,    in   the  year  of  our  Lord 

one   thousand    nine   hundred   and   — . 

Witness    my    hand    and    seal    of    said    court    this    day    of 

,    in    the    year    of    our    Lord     one    thousand    nine    hundred 


and 


Clerk  of  the  Court  of  Common  Pleas,  County,  Ohio. 

No.  99.     The  sheriff's  return  of  his  proceedings  under  said 
summons. 

Sheriff's  Return. 

The  State  of  Ohio,  County,  ss.: 

Received    this   writ   on   the  day   of  in   the  year 

of    our   Lord    one    thousand    nine    hundred    and   at   

o'clock,  M.,  and   pursuant   to    its   command   on   the  

day  of  ,   in  the  same  year,   I   served  the  same  by  personally 

handing  a  true  and  duly  certified  copy  of  this  writ  with  all  the 
indorsements  thereon  to  each  of  the  following  of  the  within  named 
defendants,  E.  M.  and  I.  J. 

I   also  on   the  day   of  ,   ID ,   delivered   a   true 

and  duly  certified  copy  of  this  writ  with  all  the  indorsements  thereon 
personally  to  each  of  the  following  of  the  within  named  defendants, 
T.    J.,    E.    J.,    and    J.    J.    and    whereas     the    said    E.    J.    and    J.    J.    are 

minor    children    under   years    of    age    and    having    no    legal 

guardian,  I,  on  said  day  of  ,  19 ,  served  the  same 

by  delivering  a  true  copy  thereof,  with  all  the  indorsements  thereon 
personally  upon  T.  J.,  the  father  of  said  minor  children. 


sheriff   of    County,    Ohio. 

Nc.  100.     The  answer  and  cross-petition  of  The  Com- 
pany setting  up  a  building  and  loan  mortgage. 

Court  of  Common  Pleas,  — — County,  Ohio. 

A.  H.  J.,  as  administrator  with  the 
will  annexe;1   of  J.  A.  J.,  deceased, 

Plaintiff, 

vs.  Petit"  >n   No.   . 

E.  M.,  E.  J.,  a  minor,  J.  J.,  a  minor, 
T.  J.,  J.  D.  E.,  D.  J.,  J.  M.  J., 
M.  J.  E.,  I.  J.  and  The  Company, 

Defendants. 

1.    For  the  first  defense  herein  the  defendant,  The  Company, 

for  its  answer  herein  says  that  it  is  a  corporation  duly  incorporated 


MERWINE    ON    REAL,    ACTION'S.  238 

under    the    laws    cf   the    State   of    Ohio,    and    has    its    principal    place 

of  business  in  the  city  of  in  said  State.     It  further  says  that 

it  has  no  information  or  knowledge  regarding  the  averments  in  the 
petition  contained,  and,  therefore,  denies  the  allegations  in  the  peti- 
tion set  forth  and  each  and  every  of  them. 

2.    By  way  of  cross  petition  The  — —  Company  now  comes  and 

says  that  it  is  a  corporation  duly  incorporated  under  the  laws  of 
the  State  of  Ohio  and  has  its  principal  place  of  business  in  the  City 

of    in    said    State,    that    on    the    day    of   , 

19 ,   the   defendant,   J.    D.   E.,   did   together  with    his   wife,   W.   E., 

who  released  her  dower  therein,  duly  execute  and  deliver  to  said 
answering    defendant    their    certain    mortgage    deed    on    the    following 

described    real    estate    situate    in    the    City    of    ,    County  of 

,  and  the  State  of  -,  the  real  estate  described  in  the 

petition,  and  more  particularly  described  as  follows,  to-wit:  (Here 
insert  description  of  real  estate). 

Said    mortgage    contained    the    condition    that,    whereas,    the    said 
J.    D.    E.    and    W.    E.    have    entered    into    a    contract    in    writing    with 

said    The Company,    in    the    words    and    figures    following: 

(Here   insert  the  contract). 

Now.  if  the  said  J.  D.  E.  and  W.  E.,  their  heirs  and  assigns  shall 

pay   to   said    The   Company,    its   successors    and    assigns   the 

said  sums  of  money  when  due  as  set  forth  in  said  contract,  and 
if  the  said  mortgagors,  their  heirs  and  assigns  shall  observe,  keep 
and  perform  all  the  covenants  herein  contained  on  their  part  to  be 
kept,  observed,  and  performed,  then  these  presents  shall  be  void; 
otherwise  to  be  and  remain  in  full  force  and  virtue  in  law  forever. 

Said    mortgage   was   on   the   day    of  — ,    10 .    at 

o'clock,   m..   duly   filed    for   record   in   the   recorder's 

office  of County,  Ohio,  by  this  defendant  and  was  duly  entered 

of    record    in    Mortgage    Book    page    ,    in    said    office    and    is 

still   a   valid   and   subsisting   lien   against   said   premises. 

The    interest   on   said   note   has   been   paid   in   full    to   the  

day    of    ,    19 ,    and    on    or    about    said    day    of 

,   19 ,   there   was   paid   on   the    principal   sum   of  said   note 

the  sum   of  $ . 

No   payments   have  been   made  on   said   note  on  account  of   either 

principal    or    interest    since    said    day    of    ,    19 , 

and  by  reason  of  the  premises  this  answering  defendant  has  elected 
to  declare  and  does  hereby  declare  the  whole  amount  of  said  note 
and  mortgage  to  be  due  and  payable  and  does  now  demand  pay- 
ment thereof. 

There    is    now    due    and    unpaid    to    this    answering    defendant    on 

said    mortgage,    and     now    thereby    secured,    the    sum    of    $ , 

with    interest     thereon     at    the    rate    of    per    cent,     per    annum, 

payable  from  said  day  of  .  19 . 

Tliis  defendant  further  says  that  at  the  time  said  note  and  mort- 
gage were  executed  and  delivered  to  it  by  the  said  J.  D.  E.  and 
wife,   the   said    J.    D.   E.   was,   as   appeared   from    the   records    in   the 


239  FORMS. 

recorder's  office  of  said  — County,  seized  in  fee  simple  of  the 

aforesaid  premises,  and  that  this  defendant  was  also  informed  by 
the  said  J.  D.  E.  and  his  wife  and  believed  that  the  said  J.  D.  E. 
was  the  owner  in  fee  simple  of  said  premises  and  that  it  had  no 
knowledge,  intimation  or  belief  to  the  contrary,  and  that  acting  in 
good  faith  and  in  reliance  of  his  being  seized  in  fee  simple  as 
aforesaid  of  said  premises,  this  defendant  did  loan,  on  the  date  here- 
inbefore   mentioned,    the    aforesaid    sum    of    $ ,    and    that    the 

said  J.  D.  E.  and  wife  did  then,  and  at  that  time,  to  secure  said  loan, 
execute  and  deliver  to  this  defendant  the  mortgage  which  is  herein- 
before specified,  mentioned  and  referred  to.  This  defendant  is  informed 
that  the  plaintiff  A.  H.  J.  claims  to  be  the  administrator  with  the 
will  annexed  of  J.  H.  J.,  deceased,  and  that  these  defendants,  co- 
defendants,  to-wit:  E.  M.,  E.  J.,  a  minor,  J.  J.,  a  minor,  T.  J.,  J.  D.  E., 
D.  J.,  J.  M.  J.,  M.  J.  E.  and  I.  J.,  and  that  the  said  A.  H.  J.,  as 
administrator  as  aforesaid,  each  claim  to  have  some  interest  in  the 
aforesaid  premises,  and  it  therefore  asks  that  the  said  A.  H.  J.  and 
that  the  said  co-defendants,  and  each  of  them,  be  required  to  answer 
herein  setting  forth  what,  if  any  interest  they  have,  or  claim  in  said 
premises,  or  be  forever  barred   from  asserting  the  same. 

Wherefore  this  defendant  prays  that  in  default  of  the  payment 
of  the  amount  due  and  payable,  or  that  may  hereafter  become  due  and 
payable  before  the  judgment  herein,  its  said  mortgage  may  be  fore- 
closed and  said  premises  be  sold'  free  of  all  claims  of  the  plaintiff 
and  of  this  defendant  and  the  said  co-defendants,  and  that  the  pro- 
ceeds arising  from  said  sale  of  said  premises  be  applied  to  the  pay- 
ment of  the  debt  due  this  defendant,  and  further  prays  for  all  such 
other  and  further  relief  as  is  proper   in  the   premises. 


Attorney   for  Company. 

This  answer   is  verified  as  in  other  cases. 

No.  101.     Waiver  of  summons  and  entry  of  appearance. 

A.  H.  J.,  as  administrator  with   the 
will  annexed  of  J.  A.  J.,  deceased, 

Plaintiff, 

vs.  Petition   No.    —  . 

E.  M.,  E.  J.,  a  minor,  J.  J.,  a  minor, 
T.  J.,  J.  D.  E.,  D.  J.,  J.  M.  J., 
M.  J.  E.,  I.  J.  and  The  Company, 

Defendants. 

The  undersigned  do  now  each  come  and  voluntarily  waive  the 
issuing  and  service  of  a  summons  on  them  of  the  answer  and  cross- 
petition    of    The    Company,    and    each    do    hereby    enter    his 

appearance    in    this   case. 

A.  H.  J., 
As   Administrator  with   the  will  annexed 
of  J.   A.   J.,   deceased,   D.   J. 


HER  WINE    ON    REAL    ACTIONS.  240 

No.  102.     An  answer  in  such  case. 

A.  H.  J.,  as  administrator  with  the 
will  annexed  of  J.  A.  J.,  deceased, 

Plaintiff, 

vs.  Petitioa   No.    . 

E.  M.,  E.  J.,  a  minor,  J.  J.,  a  minor, 
T.  J.,  J.  D.  E.,  D.  J.,  J.  M.  J., 
M.  J.  E.,  I.  J.  and  The  Company, 

Defendants 

The   defendants,  E.   M.   and   T.  J.,   for  answer,  say  that   it   is  true 

that  J.   A.  J.   died  on  the  day  of  ,   19 ;    that  on 

the  day  of  ,   19 ,   he  executed  his   last   will  and 

testament,  and  that  the  said  A.  H.  J.  is  now  the  administrator  of 
his    estate    with    the    will    annexed    as    alleged    in    the    petition;    that 

on  the  day  of  ,   19 ,   the  said   J.  A.   J.   conveyed  the 

property    described    in    the    petition    to    the    said    J.    D.    E.    by    deed; 

that    on    the    day    of   ,    19 ,    the    said    J.    D.    E.    sold 

and  conveyed  said  real  estate  to  the  defendant,  E.  M.,  and  to  E.  J., 
the  wife  of  the  said  T.  J.  who  has  since  died. 

Said  conveyance  was  by  good  and  sufficient  deed  and  upon  good 
and   sufficient   consideration. 

The  defendant  T.  J.  has  a  dower  interest  or  estate  vested  in  said 
real   estate. 

These  answering  defendants  deny  each  and  every  other  allegation 
in    said    petition    contained. 

Wherefore,  these  answering  defendants  pray  that  plaintiff's  petition 
may  be  dismissed. 


Attorneys   for   E.   M.   and   T.   J. 
The  answer  is  verified   as   in   other  cases. 

No.  103.     Entry  appointing  guardian  ad  litem. 

A.  H.  J.,   as  administrator  with   the 
will  annexed   of  .1.   A.  J.,  deceased, 
Plaintiff, 

vs.  Petition   No.    . 

E.  M.,  E.  J.,  a  minor,  .1.  J.,  a  minor, 
T.     J.,     J.      D.     E.,    D.    J.,    J.    M.    J., 

M.  J.  E.,  I.  J.  and  The  Company, 

Defendants. 

It  appearing  to  the  court  that  E.  J.  and  J.  J.,  minor  defendants, 
have  been  duly  served  with  summons  and  are  under  14  years  of 
age,  and  have  not  applied  for  the  appointment  of  a  guardian  ad 
litem,  although  more  than  twenty  days  have  elapsed  since  the  return 
of  the  summons  served  upon  them  and  each  of  them;  and  upon  the 
application   of   the  plaintiff,   it   is  ordered   that  be  appointed 


241  for::-; 

guardian  ad  litem  for  said  minor  defendants.  And  thereupon  camo 
the   said   and   accepted   said   appointment. 

No.  104.     Answer  of  guardian  ad  litem. 

A.   H.  J.,   as  administrator  with  the 
will  annexed  of  J.  A.  J.,  deceased, 

Plaintiff, 

vs.  Petition   No.   . 

E.  M.,  E.  J.,  a  minor,  J.  J.,  a  minor, 
T.  J.,  J.  D.  E.,  D.  J.,  J.  M.  J., 
M.  J.  E.,  I.  J.  and  The  Company, 

Defendants. 

Now   comes   heretofore   appointed   by   the    court   guardian 

0(7  litem  for  the  infant  defendants  herein,  E.  J.  and  J.  J.,  and  for 
his  answer,  as  such  guardian  ad  litem,  to  the  petition  herein,  says 
that  he  denies  all  the  allegations  therein  contained,  and  further  says 
that  said  infant  defendants  are  of  tender  years,  and  asks  the  court 
to  protect  their  rights  and  to  grant  them   such  relief  herein  as  may 

be  proper.  , 

As  Guardian  ad  litem  for  E.  J.  and  J.  J. 

No.  105.     Decree  setting  aside  fraudulent  conveyance  and  or- 
dering sale  of  real  estate. 

A.  H.  J.,  as  administrator  with   the 
will   annexed   of   J.   A.   J.,   deceased, 

Plaintiff, 

vs.  Petition   No.    . 

E.  M.,  E.  J.,  a  minor,  J.  J.,  a  minor, 
T.  J.,  J.  D.  E.,  D.  J.,  J.  M.  J., 
M.  J.  E.,  I.  J.  and  The  Company, 

Defendants. 

This  day  came  the  parties  and  this  cause  came  on  for  trial  on 
the    petition    of    plaintiff,    the    answer    of    the    defendants,    E.    M.    and 

T.   J.   filed   herein   on    the day   of  ,   19 ,   and   the 

answer  of  the   infant   defendants,   E.   J.   and   J.   J.    by  ,   their 

guardian  ad  litem  heretofore  appointed  by  the' court,  the  answer  and 
cross  petition  of  the  defendant,  The  Company,  and  the  evi- 
dence, and  the  court  finds  that  all  the  defendants  have  had  due  and 
legal  notice  of  the  pendency  and  prayer  of  said  petition  and  said 
answer  and  cross  petition,  and,  except  as  said  defendants  have  an- 
swered aforesaid,  are  in  default  for  answer  or  demurrer  to  the  said 
petition    and    the    said    answer    and    cross-petition. 

And  the  court,  having  heard  the  testimony  adduced  by  the  parties, 
finds  the  equity  of  the  case  with  the  said  plaintiff  and  with  the  said 

The  Company,  and  that  all  the  facts  stated  in  said  petition 

are  true  and  that  the  facts  stated  in  said  answer  of  the  defendants 
E.  M.  and   T.  J.    contrary  thereto  are  untrue,   and   that  all  the   facts 


MERWINE   ON    REAL    ACTIONS.  242 

stated   in   the   said   answer   and   cross-petition   are   true,   and   that    the 

said    plaintiff   and    that    the    said   defendant,    The   Company, 

are  each  entitled  to  the  relief  for  which  they  respectively  prayed. 

The  court  finds  further  upon  the  issues  joined  between  the  petition 
and  the  said  answer  of  said  E.  M.  and  T.  J.,  that  the  conveyance 
of  the  real  estate  mentioned  and  described  in  the  petition  made  by 
the  said  decedent,  J.  A.  J.,  to  the  defendant,  J.  D.  E.,  and  by  the 
defendant,  J.  D.  E.,  to  the  defendant,  E.  M.  and  one  E.  J.,  now  de- 
ceased, were  each  made  with  the  intent  to  hinder,  delay  and  defraud 
the  creditors  of  said  J.  A.  J.  as  in  said  petition  alleged,  and  that  the 
said  deeds  were  received  by  said  grantees  respectively  without  con- 
sideration and  with  knowledge  of  said  intent  on  the  part  of  said 
J.  A.  J.  and  that  said  grantees  ea^h  and  the  said  defendants  E.  J., 
J.  J.,  and  T.  J.,  have  no  legal  title  to  said  real  estate  nor  any 
interest    therein. 

And  the  court,  on  the  evidence,  further  finds  that  the  said  de- 
cedent, J.  A.  J.,  died  seized  of  the  equitable  title  to  said  real  estate 
and  that  said  real  estate  is  assets  of  his  said  estate  and  that  it 
is  necessary  to  sell  said  real  estate  to  pay  the  debts  of  his  estate 
and  the  costs  and  expense  of  administration. 

It  is  further  ordered,  adjudged  and  decreed  by  the  court  that 
the  said  deeds  of  conveyance  for  the  real  estate  in  the  petition 
described  from  the  said  J.  A.  J.  to  the  said  J.  D.  E.  and  from  the 
said  J.  D.  E.  to  the  said  E.  M.  and  E.  J.  be  and  the  same  are 
each  hereby  declared  void  and  to  be  of  no  force  and  effect  in  lav/ 
to  affect  the  title  of  said  real  estate  or  to  convey  the  same  to  the 
said  J.  D.  E.  or  to  the  said  E.  M.  or  E.  J.,  or  either  of  them,  and 
the  same  and  each  are  hereby  set  aside  and  held  for  naught. 

It  is  therefore  ordered  by  the  court  that  the  said  plaintiff,  A. 
H.  J.,  as  the  administrator  with  the  will  annexed  of  said  J.  A.  J., 
deceased,  proceed  to  appraise  and  sell  said  real  estate  for  the  pur- 
poses aforesaid;  and  it  is  further  ordered  by  the  court  that  C.  A., 
F.  C.  M.,  and  C.  R.,  three  judicious  and  disinterested  men,  free- 
holders of  the  vicinity,  after  being  duly  sworn,  and  upon  actual 
view  of  the  premises,  as  in  the  petition  described,  appraise  the  same 
at  its  fair  cash  value,  and  return  said  appraisement  to  this  court  for 
confirmation.  The  said  real  estate  is  described  as  follows:  (Here 
insert,  description   of  said   real  estate). 

It  is  further  ordered  that  the  said  defendants,  E.  M.,  E.  J.,  J. 
.1.,  and  T.  J.,  pay  the  costs  of  this  action   incurred  up  to  the  present 

time    taxed    at    $ ,    including    a    guardian    ad    litem    fee    for 

said   minor   defendants,    amounting    to    the    sum    of    $ ,    which 

the  court   hereby  orders  to  be  paid  as  part   of  the  costs,   to  

as   such   guardian   ad    litem   for   services   herein,   and    that    in    default 
of  such  payment  an  execution  issue  therefor. 

And   this  cause  coming   on    further   to   be  heard    upon    the   answer 

and  cross-petition  of  the  defendant.  The  Company,  the  court 

finds  that  the  said  J.  D.   E.  and  W.  E.,  his  wife,  made,  executed  and 
delivered   to  said  company   the  said   note   and   mortgage   in   the   said 


243  FORMS. 

answer  and  cross-petition  set  forth,  and  that  the  said  company  had 
no  knowledge  or  notice  of  said  fraud  aforesaid,  and  was  wholly  in- 
nocent in  said  transaction,  and  that  said  company  has  a  good  and 
valid  lien  for  the  amount  due  on  said  note  and  mortgage  against 
the  said  real  estate  above  described,  and  that  the  same  is  the  first 
and  best  lien  upon  the  real  estate  in  the  petition  described  and 
superior  to  the  interest  in  the  estate  of  the  said  J.  A.  J.,  deceased, 
therein. 

And  the  court  further  finds  that  there  is  due  The  Com- 
pany   upon    the   note    in    its    answer   and    cross-petition   set   forth    the 

sum    of    $ ,    with    interest    thereon    from    the   day   of 

,  19 ;  that  the  condition  of  said  mortgage  has  been  broken, 

and  that  the  said  company  is  entitled  to  have  said  mortgaged  premises 
sold  to  pay  the  amount  found  due  said  company  as  aforesaid.  It  is 
therefore   ordered,    adjudged    and   decreed  that   unless    the   said    J.    D. 

E.,    E.    M.,    E.    J.    and    T.    J.    within   days    from    the    entry    of 

this  decree  pay,  or  cause  to  be  paid,  to  the  said  company  the  amounts 
so  found  due  it  aforesaid,  together  with  the  costs  of  this  action,  that 
an    order    of    sale    issue    upon    the    precipe    of    said    company    to    the 

sheriff  of  County,   Ohio,  to  appraise,  advertise  and  sell  said 

real  estate  as  upon  execution,  and  report  his  proceedings  to  this 
court  for  its  further  order.  It  is  further  ordered  by  the  court  that 
in   case    this    plaintiff  shall   obtain    from    this    court   an   order   to   sell 

said   real  estate  within  days  from   the   entry  of  this  decree 

and  shall  thereupon  proceed  without  unnecessary  delay  to  sell  said 
real  estate  upon  its  said  decree,  that  no  order  of  sale  shall  issue  in 
favor  of  said  company  in  favor  of  its  decree,  in  which  event  the 
amounts  so  found  due  said  company  shall  first  be  paid  out  of  the 
proceeds  of  sale  made  under  the  order  to  be  issued  by  said  plaintiff. 

No.  106.     The  order  of  appraisement. 

In   the   Court   of   Common   Pleas. 

State  of  Ohio,  County,  ss.: 

To  A.  H.  J.,  as  administrator  icith  the  will  annexed  of  J.  A.  J.,  deceased, 
Greeting : 

In  obedience  to  an  order  and  decree  of  the  Common  Pleas  Court 
within  and  for  said  county  made  this  day  in  a  certain  case  wherein 
you,  as  the  administrator  with  the  will  annexed  of  the  estate  of 
J.   A.   J.,   deceased,  are  complainant  and  E.  M.   et  al,   are   defendants, 

you  are  commanded  that  by  the  oaths  of ,  and  , 

three  judicious  and  disinterested  men  of  the  vicinity  and  upon  actual 
view  of  the  premises,  you  cause  a  just  valuation  and  appraisement  to 
be  made  according  to  law  of  the  following  described  premises:  (Here 
insert  description  of  the  real  estate  as  aforesaid)., 

And  be  it  further  ordered  that  you  make,  return  of  your  pro- 
ceedings herein  forthwith  upon  the  execution  of  this  order. 


MERWINE   ON    HEAL    ACTIONS.  244 


Witness  my  hand  and  seal  of  said  Common  Pleas  Court  at 
this  day  of  ,    19 


Clerk   of  said   Court. 

No.  1.07.     Administrator's  return  of  his  proceedings  under  said 
order. 

To   the  Court  of  Common  Pleas.  County.   Ohio: 

In  obedience  to  the  foregoing  order,  I  have  caused  an  appraise- 
ment to  be  made  of  the  premises  therein  described  as  will  more  fully 
appear  by  the  proceedings  of  the  appraisers  hereto  annexed. 


As  Admr.  with,  will  annexed  of  J.  A.  J.,  deceased. 

No.  108.     The  oath  of  the  appraisers. 

The  State  of  Ohio,  County,  ss.: 

On   the   day   of   ,    19 ,   before    me    personally 

appeared . and    ,    the    within    named,    and 

made  solemn  oath  that  they  would  upon  actual  view  honestly  and 
impartially  appraise  the  within  described  real  estate  at  its  fair  cash 
value  in  pursuance  of  the  foregoing  order. 


Appraisers. 
Sworn  to  and  subscribed  before  me  this  day  of  


19- 


Notary   Public.   County,    0. 

No.  109.     Entr3'  confirming  the  appraisement  and  order  of  sale. 

A.  H.  J.,  as  administrator  with  the 
will   annexed  of  J.  A.  J.,  deceased, 

Plaintiff, 

vs.  Petition   No.   . 

E.  M.,  E.  J.,  a  minor,  J.  .T.,  a  minor, 
T.  J.,  J.  D.  E.,  D.  J„  J.  M.  J., 
M.  J.  E.,  I.  J.  and  The  Company, 

Dt  fendants. 

This  day  came  the  parties,  and  this  cause  came  on  to  he  heard 
upon  the  return  of  the  appraisement  heretofore  ordered  in  this  case, 
and  the  same  was  submitted  to  the  court,  and  the  court,  after  care- 
ful examination  of  the  same,  finds  that  the  said  appraisement  has  been 
made  in  all  respects  in  accordance  with  law  and  the  orders  of  this 
court  by  competent  and  qualified  appraisers,  and  the  same  is  hereby 
approved  and  confirmed,  and  it  further  appearing  to  the  court  ttat 


245 


FORMS. 


the  said  plaintiff,  under  the  orders  of  the  Probate  Court  of  

Ceunty,  Ohio,  has  given  an  additional  bond  in  the  sum   of  $ 

with  approved  securities  thereon  conditioned  according  to  law,  making 

the  total  bond  given  by  plaintiff  amount  in  the  aggregate  to  $ 

;.nd  that  said  additional  bond  has  been  approved  and  accepted  by 
the  Probate    Court  of  -  -  County.  Ohio,   it   is  now  ordered  by  this 

court  that  the  said  A.  II.  J.  as  administrator  with  the  will  annexed 
<  t  said  J.  A.  .]..  deceased,  proceed  to  advertise  for  sale  at  the 
door    of    the    court    house    i:i  —    County.    Ohio,    the    real    esiate 

in  the  petition  described  as  provide:!  by  law,  and  that  he  sell  the 
same  at  public  sale  at  not  less  than  two-thirds  of  the  appraised  value 
thereof  on  the  following  terms,  to-wit:  one-third  of  purchase  money 
cash  in  hand  and  the  balance  in  one  and  two  years  from  the  day 
of  sale  and  to  be  secured  by  mortgage  on  the  premises  sold,  or  all 
of  said  purchase  money  cash  in  hand  at  the  option  of  the  purchaser, 
and  it  is  ordered  that,  upon  the  precipe  of  the  said  plaintiff,  addressed 
to  the  clerk  of  this  court,  an  order  of  sale  issue  to  plaintiff  accord- 
ingly, and  said  plaintiff  is  hereby  ordered  to  make  return  to  this 
court   immediately  after  such  sale. 

No.  110.     The  order  of  sale  directed  from  the  clerk  to  the 
administrator. 

The  State  of  Ohio,  County,   ss.: 

In  the  Co  cut  of  Common   Pleas  of  ,  Ohio. 

To  A.  H.  J.,  as  administrator  with  the  will  annexed  of  J.  A.  J.,  deceased, 
Greeting: 

In    obedience   to    an    order   and    decree   of   said    Court    of   Common 

Pleas    within    and    for    said    county,    made    on    the    day    of 

•  19 •  in  a  certain  case  wherein  you,  as  the  administrator 

with  the  will  annexed  of  J.  A.  J.,  deceased,  are  complainant  and 
E.  M.  et  al,  are  defendants,  you  are  commanded  to  proceed  according 
to  law  to  sell  at  public  sale  the  following  described,  premises  situate 

in   the  County  of  -  in   the  State  of  ,  and   in  the  City 

ot' •    and    more    particularly    described    as    follows,    to-wit: 

(Here    insert    description).      Said    sale    to    be    made    at    the    door    of 

the  court  house   in  the   City   of  ,  for  not  less   than   two-thirds 

of  the  appraised  value  thereof  and  upon  the  following  terms,  to-wit: 
one-third  of  the  purchase  money  cash  in  hand,  and  the  balance  in 
one  and  two  years  from  the  day  of  sale,  deferred  payments  to  bear 
interest  from  day  of  sale  and  be  secured  by  mortgage  on  premises 
sold,  or  all  of  said  purchase  money  cash  in  hand  at  the  option  of  the 
purchaser,  and  that  you  make  due  return  of  your  proceedings  herein 
forthwith    upon   the   execution   of   this   order. 

Witness    my    hand    and    seal    of   this    Court    of    Common    Pleas    at 
,  Ohio,   this day   of  19 


Cleric  of  the  Courts   of  County.   Ohio. 


MERWINE   ON    REAL    ACTIONS.  246 

No.  111.     The  administrator's  publication  of  sale  of  real  estate. 

Notice    is    hereby    given    that    on    the    day    of    , 

19 ,  at o'clock m.,  at  the  door  of  the  court  house 

in  ,  Ohio,  the  undersigned  pursuant  to  an  order  of  the  Court 

of  Common  Pleas  of  County,  in  the  case  of  the  undersigned, 

as  administrator  with  the  will  annexed  of  J.  A.  J.,  deceased,  against 

E.   M.,  et   al,   in   case   No. ,   will   offer   for  sale,  at  public  auction, 

the  following  described  real  estate,  situate  in  the  County  of  , 

in    the    State    of    ,    and    in    the    City    of    ,    and    more 

particularly  described  as  follows:  (Here  insert  description  of  real 
estate,  together  with   the  street  number  of  said  premises),   appraised 

at  $ ,  terms  of  sale,  one-third  of  the  purchase  money  in  cash, 

one-third  in  one  year  and  one-third  in  two  years  from  day  of  sale 
with  interest  thereon;  the  deferred  payments  to  be  secured  by  mort- 
gage on  the  premises  sold,  or  all  cash  in  hand  at  the  option  of 
the  purchaser. 


A.  H.  J., 

As   Administrator   with    the   will   annexed 
of  J.  A.  J.,  deceased. 

No.  112.     The  proof  of  said  publication. 

State  of   Ohio,  County,    ss.: 

being    duly    sworn    deposes    and    says    that    a    notice,    of 

which  a  true  copy   is  hereto  attached,  was  published  in  the  

a   newspaper   printed   and   in  general   circulation   in   County, 

Ohio,   once   a   week   for    four   consecutive   weeks,   to-wit:    on   , 

,  and  . 


Sworn  to  and  subscribed  before  me  this  day  of 

19 . 


Notary  Public  County,  Ohio. 

No.  113.     The  administrator's  return  of  his  proceeding's  under 
said  order  of  sale. 

State  of  Ohio,  County,  ss.: 

In    pursuance    of    the    foregoing   order   of   sale,    I    gave    notice   of 

sale    by    publication    in    ,    a    newspaper    of    genera) 

circulation    in    the   County   of   for   at   least   four   consecutive 

weeks    from   the  day    of  ,    19 ,   and   on    that   day 

at  o'clock,  a.   m..  at  the  door  of  the  court  house  in  the  Cil 

of  ,   in  accordance   with    said   notice,   I   offered  the  real  estate 

in    the   petition   described    for   sale,   when   bid   to   pay    for  the 

same   the   sum    of   $ ,    which,    being   the   highest   and   best  bid 

for  the  same  that  was  offered,  and  more  than  two-thirds  of  the  ap- 


247  FORMS. 

praised   value   of   said   premises,    I    then   and   there    sold   the   same   to 
for  that  sum  for  cash. 


A.  H.  J., 
Administrator  of  the  estate  of  J.  A.  ./.,  deceased. 

No.  114.     Confirmation  of  sale — Order  for  deed  and  distribu- 
tion. 

A.  H.  J.,  as  administrator  with  the 
will  annexed  of  J.   A.  J.,  deceased, 
Plaintiff, 

vs.  Petition.    No.  . 

E.  M.,  E.  J.,  a  minor,  J.  J.,  a  minor, 
T.     J.,     J.      D.     E.,    D.    J.,    J.    M.    J., 

M.  J.  E.,  I.  J.  and  The  Company, 

Defendants. 

This  cause  now  coming  on  to  be  heard  upon  the  return  of  A. 
H.  J.,  as  administrator  with  the  will  annexed  of  J.  A.  J.,  deceased, 
of  his  proceedings  and  sale  under  the  order  of  this  court,  the  court, 
after  having  carefully  examined  said  return,  being  satisfied  that,  such 
sale  has,  in  all  respects,  been  legally  made,  does  hereby  approve  and 
confirm  the  same  and  orders  that  the  said  A.  H.  J.,  as  such  adminis- 
trator,  make   to   the   purchaser,   ,    a    good   and    sufficient   deed 

for  the  premises  so  sold,  and  it  is  further  ordered  that  satisfaction 
of    the    mortgage    herein    set    forth    in    the    pleadings    be    entered    on 

the   record   thereof   in   the  office   of   the   recorder   of  County, 

Ohio,    where   it   is   recorded. 

The    court,    coming   now    to    distribute    the    proceeds    of   said    sale, 

amounting    to    $ ,    which    the    said    purchaser    elects    to    pay    in 

cash,   orders  that   said  administrator   pay: 

First,  the  taxes  and  special  assessments  due  and  payable  against 
said  real  estate,  amounting  to  $ . 

Second,  the  costs  of  this  action  to  the  clerk  of  this  court,  in- 
cluding a   counsel    fee   of    $ to   attorneys    for   said   plaintiff   for 

services   in  this  case,   amounting  to  $ . 

Third,    the    amount    due   The   Company    on    its    mortgage 

lien,  the  sum   of  $ . 

Fourth,  the  residue  of  said  proceeds  of  sale,  to-wit:  the  sum 
of  $ is  hereby  ordered  to  be  retained  by  plaintiff  to  be  admin- 
istered according  to  law. 

No.  115.     Form  of  the  administrator's  deed  m  such  case. 

Know    all   Men    by    these   Presents,    That: 

Whereas,   on   the   day   of   ,   19 ,   A.   H.    J.   was 

duly  appointed  and  qualified  as  administrator  with  the   will  annexed 

of  the  estate  of  J.  A.  J.,  deceased,  late  of  County,  Ohio,  by 

the    Probate    Court    of    said    county,    and    afterwards,    to-wit:    on    the 


MERWINE   ON    REAL    ACTIONS.  248 

day  of  ,  19 ,  said  as  such  administrator, 

filed   his   certain    petition   and   then   and    there   commenced    an   action 

in  the  Probate  Court  of  County,   Ohio,   against   E.   M.  et  al, 

and  numbered  on  the  docket  of  said  court  as  case  No.  ,  pray- 
ing among  other  things  for  an  order  of  sale  of  certain  real  estate 
therein    mentioned    and    hereinafter    described,    and 

Whereas,     Such    proceedings    were     had     in     said     action     on     the 

■ day  of  ,  19 ,  said  court,  finding  the  allegations  of  the 

petition  true,  and  that  said  real  estate  ought  to  be  sold  as  prayed 
for  in  said  petition,  and  on  the  same  day  in  pursuance  of  said  order 
and    judgment,    an    order    of    appraisement    was    issued    out    of    said 

court,   under  the   seal   thereof,   to  the  said  ,   as  administrator 

with    the    will   annexed    of   J.    A.    J.,    deceased,    as    aforesaid     directed,, 
commanding  him  to  execute  the  said  orders,  and  of  the  same,  together 
with  his  proceedings   thereon,  to  make   due  return,  and 

Whereas,  said  ,  having  caused  said  premises  to  be  appraised, 

and  having  on  the  day  of  ,   returned  said  appraisement, 

the  same  was    by  the  court  confirmed,  and  said  court  ordered  that  the 

said  proceed  to  sell  said  property  at  public  sale  as  provided 

I       law,    and     thereafter,    to-wit:    on    the day    of   ,    said 

made  a  report  to  this  court  of  a  sale  made  of  the  premises 

in   the   petition    described   to   for   the   sum    of   $ ,   and 

Whereas,  on  the  day  of ,  19 ,  the  said  court  having 

examined   the  proceedings  of  the  sale  of  the  said  aforesaid 

under  said  order  of  sale,  and  it  appearing  to  the  court  that  the  same 

be    approved    and    confirmed,    and    that    said    should    execute 

and  deliver  a  proper  deed  to  the  purchaser  of  the  real  .estate  so  sold; 
all  of  which  will  more  fully  appear  by  the  records  of  said  court, 
to  which  reference  is  here  made; 

Now  therefore  A.  H.  J.,  the  said  administrator  of  the  estate  of 
J.  A.  J.,  deceased,  aforesaid,  by  virtue  of  said  judgment,  order  of  sale, 
sale  and  confirmation,  and  of  the  statute  in  such  case  made  and  pro- 
vided, and  of  the  powers  vested  in ,  and  for  and  in  considera- 
tion of  the  premises  and  the_  sum  of  $ ,  paid  or  secured  to  be 

paid  to  by  said  ,  the  receipt  whereof  is  hereby  acknowl- 
edged, do  hereby  grant,  bargain,  sell  and  convey  to  the  said  , 

his   heirs   and   assigns    forever,   the   following   real    estate,    situated    in 

'    i    County  of ,  in  the  State  of  Ohio,  and   in  the  of 

,  and  bounded  and  described  as  follows:      (Here  describe  real 

(state  i.    tree   of   any    dower   estate   therein. 

To  Have  and  to  Hold  said  premise.,  with  all  the  privileges  and 
appurtenances  thereto  belonging  to  the  said ,  his  heirs  and  as- 
signs   forever,   as    fully    and    completely    as    lie,    the   said    ,   as 

such      ,   by    virtue    of    said    judgment,    order    of    sale,    sale    and 

confirmation,   and   of   the   statute   made    and    provided    for   such    cases 
hi    or   should   sell    or   convey    the   same. 

In    Witness    Whereof,   The  said  ,   as   such   ,  has 

hereunto  set  his  hand,  this  day   of  ,   19 


249 


FORMS. 


Signed  and  sealed  in  presence  of 


State  of  Ohio. 


County,  ss.: 


Be  it  Remembered,  That  on  the 


day  of 


19- 


-,  before 


me,  the  subscriber,  a   notary   public  in  and   for  said  county,   personally 

came  the  above  named ,  as  of  .  the  grantor 

in  the  foregoing  deed,  and  acknowledged  the  signing  of  the  same  to 

be    his    voluntary    act    and    deed    as    such    —    for    the    uses    and 

purposes   therein   mentioned. 

In     lisriMdw    Whereof,    I    have    hereunto    subscribed    my    name    and 
affixed  my  official  seal  on  the  day  and  year  last  aforesaid. 


Notary  Public, 


County,  Ohio. 


PROCEEDINGS  IN  THE  PROBATE  COURT  WHERE  REAL 

ESTATE  IS  SOLD  BY  AN  ADMINISTRATOR  AT 

PRIVATE  SALE,  SUBJECT  TO  DOWER. 


FORM 

11C. 


117. 

118. 
119. 
120. 
121. 

122. 

123. 


'  ?4. 
!25. 


126. 


The  petition  where  real  rotate 

is  sold  in  probate  court  at 

private  sale. 
Answer    of    the    widow    asking 

an  assignment  Qf  dower  in 

the    real    estate    sought    to 

be  sold. 
'I  he    precipe   for    summons    in 

the  above  case. 
Summons    i  n    petition    to    sell 

real  estate. 
The     sheriff's     return     of    the 

aforesaid   summons. 
Decree   and    order   for   sale  of 

real  estate  subject  to  dower 

therein. 
Tl rder    of    assignment    <  f 

'lower  and  appraisement  of 

real   estate. 
The  administratrix-'  return   of 

her  proceedings  under   said 

order. 
'I  he  oath  of  the  appraisers. 
The  appraisers'  return  of  their 

proceedings        under        the 

order. 
Order  of  court  confirming  ap- 


FORM. 

praisement — Assignment  of 
dower  and  ordering  addi- 
tional bond  and  sale  of  the 
real  estate  subject  to 
dower. 

Jl'7.  Form  for  additional  bond  re- 
quired  by  the   statute. 

128.  Order  to  sell  real  estate  at 
private  sale  for  cash,  sub- 
ject to  dower — Approval  of 
additional   bond. 

120.  The  order  df  sale  to  the  ad- 
ministratrix at  private  sale 
for  cash  and  subject  to 
dower. 

130.  The  administratrix'   report   of 

sale  under  said  writ. 

131.  Entry  confirming  sale  and  or- 

dering deed. 

132.  Administratrix'    deed    for    real 

estate  sold  at  private  -ale 
in  the  probate  court  sub- 
ject to   widow's    dower. 

133.  Order   for   sale  of    real    estate 

at  public  auction. 

134.  The    order    of    sale    issued    to 

the  administrator. 


MERWINE   ON    REAL    ACTIONS. 


250 


FORM. 
135. 


136. 
137. 
138. 

139. 
140. 


141. 
142. 

143. 

144. 
145. 
14G. 


r47. 

148. 


The  administrator's  return  of 
his  proceedings  under  said 
order  of  sale. 
The    publication    of    notice    of 

sale  of  said  real  estate. 
Proof    of    publication    of    the 

aforesaid  notice. 
Confirmation     of    administra- 
tor's    sale    and    order     for 
deed. 
Administrator's    deed   in    sale 
of    real    estate    by    probate 
court     at     public     auction 
free  of  dower. 
Answer    of    widow    consenting 
to  sale  and  waiving  assign- 
ment of  dower  in   real  es- 
tate by  metes  and  bounds, 
and    asking    that    the    real 
estate   be    sold   free   of   her 
dower,  and  that  she  may  be 
endowed  out  of  proceeds  of 
sale. 
The  order  of  sale   where   real 
estate  is  sold  free  of  dower 
of  widow. 
Application    for    the    appoint- 
ment of  guardian  ad  litem 
and  a  trustee  to  answer  for 
an  insane  defendant. 
Order     of     court     appointing 
guardian    ad    litem    and    a 
trustee    for    an    insane    de- 
fendant. 
Answer  of  guardian  ad   litem 

for  infant  defendant- 
Answer    of    a    trustee    for    an 

insane  person. 
Application  to  have  the  real 
estate  described  in  petition 
of  an  administrator  to  sell 
lands  to  pay  debts,  sur- 
veyed and  platted. 
The  affidavit  in  support  of  the 

above  application. 
( irder  of  the  court  authorizing 
the  real  estate  described  in 
the  petition  to  be  surveyed 
and  platted  and  order  of 
the  courl  confirming  the 
same-  Order  of  the  court 
approving  and  confirming 
said  survey,  plat  and  ad- 
dition. 


FORM. 

149. 


150. 


151. 


152. 
153. 


154. 

155. 

156. 
157. 


158. 


159. 


160. 


161. 


162. 


Order    of    the    court    on    the 
hearing   for   assignment  of 
homestead   and   dower   and 
order  of  appraisement  sub- 
ject   to    dower    and    home- 
stead. 
Order   from   the   court   to   the 
plaintiff'  for   assignment  of 
homestead    and    dower    and 
appraisement. 
The  administrator's  return  of 
his    proceedings    under    the 
above  order. 
The  oath  of  appraisers. 
The  return  of   the  appraisers 
assigning     homestead     and 
dower   and    appraising   the 
real  estate,  subject  to  home- 
stead and  dower. 
Order  of  the  court  dismissing 
petition   of   an   administra- 
tor at  his  costs. 
Affidavit     to     obtain     service 
upon   defendants   by   publi- 
cation. 
Notice  to   parties   by   publica- 
tion. 
The  certificate  of  a  justice  of 
the    peace    appointing    ap- 
praiser to  serve  instead  of 
appraiser  appointed  by  the 
court. 
Motion    asking    that    the    ap- 
praisement and  sale  of  the 
real  estate  described  in  the 
petition  be  vacated  and  set 
aside. 
Affidavit  in  support  of  motion 
to    set    aside    appraisement, 
and  sale  of  real  estate. 
Order  of  the  court   sustaining 
the   motion   to   set   aside  an 

appraisement    and    sale    of 

real  estate. 
Order   of   court    setting   aside 
appraisement      of     real     es- 
tate,   appointing    new    ap- 
praisers    ami     ordering     a 

sale  of    real    estate   under   a 
former   order   of    sale. 
Order     of     the     court     fixing 
price  at  which    real   estate 
may  be  sold. 


251  FORMS. 

No.  118.     The  petition  where  real  estate  is  sold  in  probate  court 
at  private  sale. 

Probate  Coubt,  County,  Ohio. 

O.  M.  B.,  as  administratrix  of  the 
estate  of  E.  A.  B.,  deceased, 

Plaintiff, 

vs.  No.  . 

E.  B.,  a  minor,  and  O.  M.  B., 

Defendants. 

PETITION    TO    SELL    REAL    ESTATE. 

Plaintiff  says   that  on  the  day   of  ,   19 ,   she  was 

appointed  and  qualified  as  the  administratrix  of  the  estate  of  E.  A.  B., 

deceased,  that  on  the  day  of ,  19 ,  she  filed  an  account 

in  this  court  in  which  she  accounted  for  all  the  personal  estate  which 
had   come   into   her   hands   and   which   shows   that   she   had   paid   out 

$ more  than  the  proceeds  of  the  personal  property;  that  she  is 

informed  that  the  account  was  her  final  account,  but  that  it  was  not 
intended  to  be  a  final  account,  as  there  was  then  a  mortgage  indebted- 
ness against  some  of  the  real  estate  belonging  to  the  estate  which  she 
proposed  to  be  able  to  pay  from  rents,  but  has  not  been  able  to  do  so, 

and  the  debts  against  the  estate  now  amount  to  the  sum  of  $ , 

and  there  are  no  funds  in  her  hands  from  which  to  pay  the  same. 
At  the   death   of  said   E.   A.  B.,   he   left  him   surviving  O.   M.   B.,   his 

widow,  and  E.  A.  B.,  a  minor  daughter,  now  of  the  age  of  years, 

and   also   died  seized   of  the   following  described    real   estate  lying   in 

County,  State  of  Ohio,  and  in  the  city  of  ,  which  has 

not  been  appraised,  to-wit:      (Here  insert  description  of  real  estate). 

Plaintiff  asks  that  the  entry  of  the  court  entered  on  the  day 

of  ,  19 ,  be  modified  by  striking  out  that  part  which  shows 

that  that  part  of  the  estate  was  settled,  and  that  a  decree  may  be 
entered  ordering  the  setting  off  to  the  widow  her  dower  in  said 
premises!  and  that  she  cause  the  tract  of  real  estate  aforesaid  to  be 
appraised,  and  all  or  so  much  thereof  as  may  be  sufficient  to  pay  the 
debts   to   be   sold    for    the   purposes   of   paying    the    debts    against   the 

estate.  , 

Attorney   for   Plaintiff. 

The  petition  should  be  verified  as  in  other  cases. 

No.  117.     Arswer  of  the  widow  asking  an  assignment  of  dower 
in  the  real  estate  sought  to  be  sold. 

O.  M.  B.,  as  administratrix  of  the 

estate    of    E.    A.    B.,    deceased.    Plaintiff, 

vs.  No.  . 

E.  B.,  a  minor,  and  O.  M.  B.,  Defendants. 


says  that  she  is  the  widow  of  E.  A.  B.,  deceased,  and  is 

entitled  to  dower  in  the  real  estate  described  in  the  petition  herein. 


MERWLNE    ON    KEAL.    ACTIONS.  252 

and    she,    therefore,    asks    that    her    dower    may    be    assigned    to    her 

therein.  , 

Attorney   for   Defendant. 

This    answer    should    he   verified   as    in   other   cases. 

No.  118.     The  precipe  for  summons  in  the  above  case. 

To   the    Clerl  : 

Issue    summons    to    the    sheriff   of   County.    Ohio,    for   the 

following  defendant,  to-wit:    E.  A.  B.,  a  minor,  years  of  age. 

Returnable  according  to  law.     Endorse  "Action  to  sell    real  estate  by 

administratrix."  , 

Attorney  for  Plaintiff. 

No.  119.     Summons  on  petition  to  sell  real  estate. 

State  of  Ohio,  — County,   ss. : 

To   the   Sheriff   of  said   County: 

You   are   commanded    to   notify   E.    A.   B.,   a  minor,  years 

of  age,  that  on  the  day  of  ,  19 ,  O.  M.  B.,  as  adminis- 
tratrix of  the   estate  of   E.   A.   B.,   deceased,  filed  her   petition    in   the 

Probate    Court    of    said    County,    Ohio,    against    them    and 

others;  the  object  and  prayer  of  which  petition  is  to  obtain  an 
order  for  the  sale  of  certain  real  estate  belonging  to  said  decedent, 
in  said  petition  described,  for  the  purpose  of  paying  debts,  and  unless 

they   answer  by  the  day  of  ,    19 ,   said  petition   will 

be  taken   as   true   and   an   order   granted. 

You  will  make  due  return  of  this  writ  on  the  day  of  , 

19 . 

Witn<    z  my  hand  and  seal  of  said  court  this  day  of  , 

19 .  . 


Judge  <nt<l  ex  officio  Clerk  of  the  Probate  Court  of  x<ii<l  County. 

No.  120.     The  sheriff's  return  of  the  aforesaid  summons. 

State  of  Ohio.  County,  ss. : 

Received    tin's    writ    on    the    day    of   ,    19 ,    at    — 

o'clock  —  m.,  and  pursuant  to  its  command,  on  the  day  of  


19 ,    I    served    the    same    by    personally    handing   a    true    and    duly 

tified   <opy  of  this  writ,   with  all  the  indorsements  thereon,   to   the 

within    named   E.  A.  B.,  a  minor,  years  of  age;    also  on   the 

same  day,   1   served   the  same  by  personally  handing  a   true  and   duly 
C<  rtified  copy  of  this  writ  with  all  the  indorsements  thereon  to  O.  M.  B., 

mother  of  said   E.  A.  B.,  a  minor    years  of  age,  not  being  able 

to   find,   after    due    and    diUrent    search,    a   guardian    or    father   of   the 
said    E.   A.   B.,  a  minor  aforesaid,   within   my  bailiwick. 


Sheriff   of  County,    0. 


253  FOKMS. 

No.  121.     Decree  and  order  for  sale  of  real  estate  subject  to 
dower  therein. 

0.  M.  B.,  as  administratrix  of  the 
estate    of    E.    A.    B.,    deceased. 
Plaintiff, 

vs.  -  No.  

E.  B.,  a  minor    and  O.  M.  B., 
Defendants. 

And  now  this  case  coming  on  to  be  heard  upon  the  petition  of 
plaintiff  to  sell  real  estate  of  the  decedent  to  pay  the  balance  of  debts 
against  said  estate,  and  the  evidence,  and  it  appearing  to  the  court 
that  the  widow  of  the  said  decedent  has  entered  her  appearance  in  this 
action,  and  that  the  other  defendant  had  been  duly  served  with  sum- 
mons, and  that  the  day  fixed  for  answer  has  passed  and  no  answer 
has  been  filed,  and  it  appearing  to  the  court  that  it  is  necessary  to  sell 
real  estate  to  pay  a  balance  upon  the  debts  against  the  estate,  and  the 
personal  estate  has  been   exhausted,   and  it   further  appearing  to   the 

court  that  an  account  filed  by  the  plaintiff  on  the  day  of , 

19 ,  had  been  inadvertently  indorsed  as  a  final  account  when  all  the 

debts  had  not  been  paid,  and  that  upon  the  confirmation  of  the  account, 
an  order  had  been  entered  by  the  clerk  of  the  court  without  the 
knowledge  of  the  said  administratrix  or  her  heirs,  which  order  stated 
that  the  estate  had  been  settled  and  the  administratrix  discharged, 
which  order  was  entered  on  the day  of ,  19 ,  it  is  there- 
fore ordered,  adjudged  and  decreed  that  said  entry  be  modified  so  as  not 
to  show  a  settlement  of  the  estate  or  a  discharge  of  said  administra- 
trix, but  merely  to  show  that  her  account  was  confirmed. 

It  is  further  ordered,  adjudged  and  decreed  that  said  administratrix 
proceed  to  have  the  real  estate  described  in  the  petition  appraised  by 
the  oaths  of  ,  and  .  three  disinterested  free- 
holders of  the  said  county. 

It  further  appearing  that  0.  E.  B.,  as  the  widow  of  said  E.  A.  B.,  is 
entitled  to  dower  in  said  real  estate,  it  is  ordered  that  said  freeholders 
proceed  to  set  off  her  dower  in  said  real  estate,  and  that  in  appraising 
said  real  estate,  they  shall  make  the  appraisement  subject  to  the 
dower  of  said  widow,  and  that  an  order  to  apportion  dower,  and  to 
appraise  said  real  estate  issue  to  said  administratrix,  returnable  accord- 
ing to  law. 

No.  122.     The  order  of  assignment  of  dower  and  appraisement 
of  real  estate. 

The   State  of  Ohio,  County,  ss.: 

In  the  Probate  Court. 

To  O.   .1/.    7?..   as  Administratrix  of  the  Estate   of  E.   A.   B     deceased. 
Greeting: 

In  obedience  to  an  order  and  decree  of  the  Probate  Court  within 
and  for  said  county  made  this  day  in  a  certain  cause  wherein  you    as 


MEKW1NE   ON    REAL    ACTIONS.  254 

administratrix  of  the  estate  of  E.  A.  B.  are  plaintiff,  and  E.  A.  B.,  ct  ah, 

are   defendants,   you   are   commanded   that  by    the  oaths   of   , 

amj   judicious,    disinterested    men    of    the   vicinity, 


not  of  kin  to  the  petitioner,  who  are  freeholders  in  the  county  within 
which  said  real  estate  is  situate,  and  upon  actual  view  you  cause  to 
be  set  off  and  assigned  to  O.  M.  B.,  widow  of  the  said  E.  A.  B.,  deceased, 
one  full  equal  third  part  as  and  for  her  dower  estate  in  the  following 

described  real  estate  in  the  County  of  ,  in  the  State  of  Ohio, 

and  in  the  ,  which  has  not  been  heretofore  appraised,  to-wit: 

(Here  describe  real  estate  in  which   dower  is  to  be  assigned.) 

And  that  said  appraisers,  having  set  off  and  assigned  said  dower 
as  aforesaid,  do  upon  their  oaths  and  actual  view  as  aforesaid,  make 
a  just  valuation  and  appraisement  of  said  real  estate  according  to 
law,  subject  to  said  dower.  You  will  make  return  of  your  proceedings 
to   this  court   forthwith   upon  execution   of   this  order. 

Witness   my    signature    and    seal    of   said   court   at  ,   Ohio, 

this   day    of  ,    19 •  » 

Probate  Judge. 

No.  123.     The  administratrix'  return  of  her  proceedings  under 

said  order. 

In  obedience  to  the  foregoing  order  1  have  caused  the  same  to  be 
duly  executed  as  will  fully  appear  by  the  proceedings  hereto  attached. 
Dated  the  day  of  ,  19 • 

Administratrix  of  Estate  of  E.  A.  B.,  Deceased. 

No.  124.     The  oath  of  the  appraisers. 

State   of   Ohio,  County,   ss.: 

We,  the  undersigned  appraisers,  do  make  solemn  oath  that  we  will, 
upon  actual  view,  honestly  and  impartially  appraise  the  within  de- 
scribed real  estate  at  its  fair  cash  value,  and  perform  the  duties  re- 
el aired  of  us  in  pursuance  of  the  foregoing  order. 


Appraisers. 

Sworn  to  before  me  and   signed   in    my   presence   this  day  of 

. 19 -.  • 

Notary  Public,  County,   O. 

No.  125.     The  appraisers' return  of  their  proceeding-sunder  the 
order. 
,„   obedience   to  the   foregoing  order,  after   first  being  duly  sworn, 
and  upon  actual  view  of  the  premises  therein  described,  we,  the  under- 
signed appraisers,'  do  set  off  and  assign   to  O.   M.   B.,  widow  of  said 


255  FORMS. 

E.  A.  B.,  deceased,  as  and  for  her  dower  estate  in  said  premises,  so 
much  thereof  as  is  contained  within  the  following  boundaries,  to-wit: 
(Here  insert  description  of  real  estate  assigned  as  such  dower),  and 
subject  to  and  encumbered  by  said  dower  so  assigned,  we  do  estimate 

the  value  of  said  real  estate  at  $ . 

Given  under  our  hands  this  — —  day  of ,  19 . 


Appraisers. 

No.  126.  Order  of  the  court  confirming  appraisement — Assign- 
ment of  dower  and  ordering  additional  bond  and  sale  of  the 
real  estate  subject  to  dower. 

O.  M.  B.,  as  administratrix  of  the 
estate    of    E.    A.    B.,    deceased, 
Plaintiff, 

vs.  No.  . 

E.  B.,  a  minor,  and  O.  M.  B., 
Defendants. 

And  now  this  case  coming  on  t»  be  heard  upon  the  return  of  the 
administratrix  upon  the  order  of  assignment  of  dower  and  of  appraise- 
ment, and  the  report  of  the  appraisers  attached  thereto,  it  is  ordered 
that  the  assignment  of  dower  be,  and  the  same  is,  hereby  confirmed, 
and  the  title  of  the  tract,  so  assigned  as  dower,  is  hereby  vested  in  the 
widow  O.  M.  B.,  for  and  during  the  term  of  her  natural  life,  and  the 
appraisement  made  by  the  appraisers  of  the  tract  described  in  the 
petition,  and  in  said  orders,   is  also  hereby   confirmed. 

And  it  appearing  from  the  description  of  the  said  tract  in  the 
petition  that  a  sale  of  a  part  of  the  tract  can-  not  be  made  without 
manifest  injury  to  the  value  of  the  remainder,  it  is  ordeied  that  the 
administratrix  proceed  to  sell  the  whole  of  the  tract  described  in  the 
petition,  subject  to  dower  of  widow  as  assigned,  at  private  sale,  for 
cash,  for  not  less  than  the  appraised  value  thereof. 

It   is   further  ordered  that,  before   she  make  the   sale,   she   give   a 

bond  in  the  sum  of  $ ,  conditioned  to  account  for  the  proceeds 

of  the  sale  as  required  by  law. 

No.  127.     Form  for  additional  bond  required  by  the  statute. 

Know   ale   Men   By   These   Presents,   That   we,   


and  are   held  and   firmly   bound   unto   the   State  of   Ohio,    in 

the  sum  of  $ ,  for  the  payment  of  which  we  hereby  jointly  bind 

ourselves. 

Dated   at  this  day  of  ,   19 . 

The   condition   of   the   above   obligation    is   such   that     whereas    the 

above    bound    was    heretofore    appointed     administratrix    of 

the  estate  of  ,  deceased,  late  of  County,  Ohio;   which 

appointment  the  said  accepted  and  gave  bond  and  took  oath 

as  required  by  law;   and 


MEKWINE    ON    REAL    ACTIONS.  256 

Whereas,    The    said    ,    as    such    administratrix,    has    made 

application  to  the  Probate  Court  of County,  Ohio,  for  an  order 

to  sell  real  estate  of  said  ,  deceased,  which  real  estate,  under 

proceedings  in  said  court  duly  had,  has  been  appraised  at  the  sum  of 

$ -;    and 

Whereas,   Said   court   ordered   said   to   execute   a   bond   as 

such   administratrix  according  to  the  statute   in   such   cases  made  and 

provided ; 

Now     Therefore,    If    the    said    shall    faithfully    discharge 

her  duties  as  administratrix  as  aforesaid,  and  she  faithfully  make 
payment  and  account  for  all  moneys  arising  from  such  sale  according 
to  law,  then  this  obligation  shall  be  void;  otherwise  it  shall  remain 
in  full  force.  - 


No.  128.     Order  to  sell  real  estate  at  private  sale  for  cash,  sub- 
ject to  dower — Approval  of  additional  bond. 

O.  M.  B.,  as  administratrix  of  the 
estate    of    E.    A.    B.,    deceased, 
Plaintiff, 

vs.  No.  . 

E.  B.,  a  minor,  and  O.  M.  B., 
Defendants. 

This  day  this  cause  "ame  on  further  to  be  heard,  and  it  appearing 
to  the  court  that  the  said  O.  M.  B.,  the  plaintiff  above  named,  has  given 

bond  as  heretofore  ordered  in  the  sum  of  $ with ,  and 

freeholders  as  sureties,  it  is  ordered  that  said  bond  be  am" 

hereby  is  approved,  and  plaintiff  having  received  an  offer  of  the 
amount  of  appraisement  for  cash,  and  it  being  made  to  appear  to  the 
court  upon  satisfactory  evidence  that  it  would  be  for  the  interest  of 
said  estate  to  sell  the  real  estate  described  in  the  petition  at  private 
sale,  it  is  further  ordered  that  said  plaintiff.  O.  M.  B.,  as  such  admin- 
istrator, proceed  to  sell  said  real  estate  subject  to  dower  of  the  widow  at 
private  sale  for  not  less  than  the  appraised  value  thereof  on  the  follow- 
ing terms,  to-wit:  cash  in  hand.  And  said  petitioner  is  ordered 
to  make  return  to  this  court  immediately,  and  such  sale  is  made  and 
this  cause  is  continued.  • 

Probate  Judge. 

No.  129.     The  order  of  sale  to  the  administratrix  at  private 
sale  for  cash  and  subject  to  dower. 

Thk  Pbobate  Court. 

The  State  of  Ohio,  County,  ss.: 

To  0.  M.  /•'..  as  administratrix  of  the  estate  of  E.  A.  B.,  Greeting: 

In  obedience   to  an   order  and   decree  of  the  Probate  Court  within 
and    for  said   county   made   this   day    in   a   certain   case,    wherein    you, 


257  FORMS. 

as  administratrix  of  the  estate  of  E.  A.  B.,  deceased,  are  plaintiff  and 
E.  B.  et  al,  are  defendants,  you  are  commanded  to  proceed  according 
to  law  to  sell,  at  private  sale,  for  not  less  than  the  appraised 
value  thereof,  subject  to  the  dower  so  assigned  of  O.  M.  B.,  widow 
of  E.  A.  B.,  deceased,  the  following  real  estate  situate  in  the  County 

of  ,   in   the   State  of  Ohio,   and  in   the  City   of  ,   and 

more  particularly  described  as  follows,  and  which  has  not  been 
appraised:       (Here    insert    description    of    real    estate). 

Said  sale  to  be  at  private  sale  and  to  be  upon  the  following 
terms  to-wit:    for  cash  in  hand: 

You  will  make  return  of  your  proceedings  to  this  court  forthwith 
upon   execution   of    this  order. 

Witness  my  signature  and  seal  of  said  Probate  Court  at  , 

Ohio,  on  this  day  of ,   19 . 


Probate   Judge. 

No.  130.     The  administratrix'  report  of  sale  under  said  writ. 

In    obedience    to    the    within    order,    I    sold    said    premises    on    the 
day   of  ,    19 ,    to  ,   subject   to    the   dower 


estate  therein  of  said  widow,  for  the  sum  of  $ — ,  said  sum  being 

the  appraised  value  of  the  same.  - — — — ■ — , 

0.   M.   B. 
Administratrix  of  the  estate  of  E.  A.  B.,  deceased. 

State  of  Ohio,   County,   ss.: 

The  above  named  0.  M.  B.,  being  duly  sworn,  says  that  the  sale 
above  reported  has  been  made  after  diligent  endeavor  to  obtain  the 
best  price  for  said  property,  and  that  said  sale  is  for  the  highest 
price  she   could    get    for   said   property. . 

Sworn  to  before  me  and  signed   in  my  presence  this  day 

of  — -,   19 .  -, 

Notary  Public County,  0. 

No.  131.     Entry  confirming  sale  and  ordering-  deed. 
Probate  Court,  County,  Ohio. 

0.   M.  B.,  as  administratrix  of  the 
estate  of  E.   A.    B.,   deceased, 
Plaintiff, 

vs.  No. . 

E.  B.,   a  minor,  and   O.   M.   B., 
Defendants. 

And  now  it  appearing  that  the  plaintiff  has  returned  the  orders 
of  sale  heretofore  issued  in  this   action  and  shows  that  she   Aas  sold 

the    premises    therein    described    to    ,    subject    to    the    dower 

estate   therein  of  said  widow,   for  the  sum   of  $ to  be  paid   in 

cash,   which   sum    is   the   full   amount  of   the  appraised   value  of  said 


MERWINE   ON    REAL   ACTIONS.  258 

real  estate  and  was  the  highest  and  best  price  she  could  obtain  for 
the  same,  it  is  ordered  that  the  said  sale  be  confirmed  and  that, 
upon  the  payment  of  the  purchase  price  of  said  premises,  she  execute 
a  deed  for  the  premises  described  in  the  petition  and  order  of  sale, 
to  the   purchaser. 

No.  132.     Administratrix'  deed  for  real  estate  sold  at  private 
sale  in  the  probate  court  subject  to  widow's  dower. 

Know  all  Men  by  these  Presents,     That,  whereas,  on  the  

day   0f (    19 was   duly   appointed    and   qualified 

as  administratrix  of  the  estate  of  ,  deceased,  late  of  

County,  Ohio,  by  the  Probate  Court  of  said  county,  and  afterwards, 
to-wit:  on  the  day  of  ,  10 ,  said  ,  ad- 
ministratrix, filed  her  certain  petition  and  then  and  there  commenced 

an    action    in    the    Probate    Court   of   County,    Ohio,    against 

E.  A.  B.   and  O.   M.   B.,  the   only  heirs  at  law  of  ,   deceased, 

and   his   widow,    numbered   on    the    docket   of   said   court   as   case   No. 

,    praying,    among   other   things,    for    an    order   of   sale    of   certain 

real  estate  therein  mentioned  and  hereinafter  described;    and 

Whereas,   such   proceedings   wers  had   in    said   action   that  on   the 

day   of  ,    19 ,   said   court,   finding   the   allegations 

of  the  petition  true  and  that  said  real  estate  ought  to  be  sold  as 
prayed  for  in  said  petition,  ordered  that  the  same  be  appraised,  and 

on    the   day    of   ,    19 ,    the    appraisement     having 

been  filed  in  said  court  and  confirmed,  said  court  further  ordered 
that  said  administratrix  proceed  according  to  law  to  sell  said  real 
estate  at  private   sale   for  not  less   than   the   appraised   value   thereof, 

subject   to   the    dower   estate   of   ,    widow,   said    dower   having 

been  assigned  to  her  by  said  appraisers,  and  on  the  same  day  in 
pursuance  of  said  order  and  judgment,  an  order  of  sale  of  said  real 
estate  therein   described  was  issued  out  of  said  court  under  the  seal 

thereof  to  the  said  ,  as  administratrix  as  aforesaid  directed, 

and  commanded  her  to  execute  said  order,  and  of  the  same,  together 
with   her   proceedings   thereon,   to  make   due   return;    and 

Whereas,    said    ,    as    administratrix,    having    caused    said 

real   estate   to   be   appraised   and    the   report    of   said    appraisement   to 

be  filed    in    said   Probate   Court,    and    having   on    the  day   of 

,  19 ,  returned  said  order  of  sale  to  said  court  as  com- 
manded   with    her    proceedings    thereon,    stating    in    substance    that    in 

obedience  to   said   order    she  sold   said   premises  on  the  day 

of    ,    19 .    to for    the    sum    of    $ ,     said 

sum  being  all  the  appraised  value  of  the  same;  and  said  sale  being 
made  after  diligent  endeavor  to  obtain  the  best  price  for  said  real 
estate,  and  for  the  highest  price  she  could  get  therefor,  subject  to 
the   dower  estate   aforesaid;    and 

Whereas,  on  the  day  of ,  19 .  the  said  court, 

having  examined  the  proceedings  of  the  said  administratrix  aforesaid 
under  said  order  of  sale,  and  it  appearing  to  the  court  that  the  said 
sale    was    in    all    respects    legally    made,    ordered    that    the    same    be 


259  FORMS. 

approved  and  confirmed,  and  that  said  administratrix  should  execute 
and  deliver  a  proper  deed  to  the  purchaser  of  the  real  estate  so 
odd,  all  of  which  will  more  fully  appear  on  the  records  of  said 
ci  nit  to  which  reference  is  herein  made; 

Now     Therefore     I,    the    said   ,    as    administratrix    of    the 

estate   of   ,    deceased    aforesaid,    by    virtue    of    said    judgment, 

order  of  sale,  sale  and  confirmation  and  of  the  statutes  in  such 
cases    made   and   provided   and   of   the   powers   vested   in  me,   and   for 

and   in   consideration   of   the    premises   and   the   sum   of   $ ,   paid 

to  me  by  said  ,  the  receipt  whereof  is  hereby  acknowledged, 

do   hereby   grant,   bargain,   sell   and   convey   to   the   said  ,   his 

heirs  and  assigns  forever,  the  following  described  real  estate  situated 

in  the  County  of  ,   in   the  State  of  Ohio,  and  in  the  City  of 

,    and    bounded    and    described    as    follows:       (Here    describe 

real  estate),  subject  to  the  dower  estate  aforesaid  of  the  said  — , 

widow  of  ,   deceased. 

To  Have  and  to   Hold  said   premises,  with   all  the  privileges  and 

appurtenances    thereunto    belonging,    to    the    said    ,    his    heirs 

and  assigns  forever,  as  fully  and  completely  as   I,   the  said  

as  such  administratrix,  by  virtue  of  said  judgment,  order  of  sale, 
sale  and  confirmation,  and  of  the  statute  made  and  provided  for 
such   cases,  might  or  should  sell   and    convey   the   same. 

In   Witness   Whereof,   the   said   ,   as   such   administratrix, 

has  hereunto  set  her  hand  this  day  of  ,  19 . 


As  Administratrix  of  the  estate  of  — — ,  deceased 

Signed  and   acknowledged  in   the   presence  of 


State  of  Ohio,   County,   ss.: 

Be  it  Rememberer  that  on   this  day  of  ,   19 , 

before  me,    the  subscriber,   a    Notary    Public   in   and   for  said   county, 

personally  came  the  above  named  ,  as  administratrix  of  the 

estate  of  ,  deceased,   the  grantor   in   the   foregoing  deed,   and 

acknowledged'  the  signing  of  the  same  to  be  her  voluntary  act  and 
deed  as  such  administratrix  for  the  uses  and  purposes  therein 
mentioned. 

In  Testimony  Whereof,  I  have  hereunto  subscribed  my  name  and 
affixed  my  official  seal  on  the  day  and  year  last  aforesaid. 


Notary    Public.  County,    0. 

No.  133.     Order  for  sale  of  real  estate  at  public  auction. 

Probate  Court,  County,  Ohio. 

(Same   caption   as   in   the   petition.) 

On  this  day  of  ,   19 ,   this  cause  came  on  to 

be  heard   upon   the  application   for  an  order  of  the   court  to  sell   the 


MERWINE    ON    REAL    ACTIONS.  260 

real  estate  described  in  the  petition  at  public  sale,  and  the  court 
being  fully  advised  in  the  premises,  it  is  considered,  adjudged,  de- 
creed and  ordered  by  the  court  that  plaintiff,  as  such  administrator, 
proceed  to  advertise  and  sell  said  real  estate  at  public  auction  ac- 
cording to  the  statute  in  such  case  made  and  provided  upon  the 
following  terms:  one-third  of  the  purchase  price  thereof  to  be  paid 
cash  in  hand  on  the  day  of  sale,  one-third  in  one  year  and  one-third 
in  two  years  from  the  day  of  said  sale,  said  deferred  payments  to 
be  secured  by  the  purchaser's  mortgage  to  plaintiff  on  said  real 
estate,  and  for  good  cause  shown,  it  is  further  ordered  that  publica- 
tion of  said  notice  of  said  sale  in  a  German  newspaper  be,  and  same 
is,  hereby  dispensed  with,  and  that  plaintiff  make  return  of  his 
proceedings  hereunder  without  delay,  and  that  an  order  of  sale  be 
accordingly   issued   to  plaintiff. 

No.  134,     The  order  of  sale  issued  to  the  administrator. 

Ix   the   Probate   Court. 

To   .    as    Administrator    of   the    estate   of   ,    deceased, 

Greeting : 

The  State  of  Ohio,  County,  ss.: 

In  obedience  to  an  order  and  decree  of  the  Probate  Court  within 
and  for  said  county,  made  this  day  in  a  certain  case  wherein  you, 
as  the  administrator  of  the  estate  of  ,  deceased,  are  com- 
plainant  and   ,    et   ah   are   defendants,    a   true    copy    of   which 

order  and  decree  is  hereto  attached,  you  are  commanded  to  proceed 
according  to  law  to  sell  the  following  described  real  estate,  after 
giving  four  weeks'  notice  by  publication  in  some  newspaper  printed 
and  of  general  circulation  in  said  county,  to-wit:  (here  insert  de- 
scription of  real  estate).  Said  sale  to  be  by  public  auction  and  at 
the  door  of  the  court  house  in  said  county  and  upon  the  foregoing 
terms:  one-third  cash  in  hand  on  the  day  of  sale,  and  one-third  in 
one  year  from  the  day  of  sale  and  one-third  in  two  years  from  the 
day  of  sale;  deferred  payments  to  be  secured  by  mortgage  on  said 
real  estate,  and  to  bear  interest  from  the  day  of  sale,  payable  annually. 

You  will  make  return  of  your  proceedings  immediately  after  ex- 
ecuting  this   order. 

Witness   my    hand    and    seal    of    the   court    at    ,    Ohio,    this 

, day  of  ,  19 .  

Probate   Judge. 

No.  135.     The  administrator's  return  of  his  proceedings  under 
said  order  of  sale. 

In  obedience  to  the  within  order  I  duly  advertised  the  real  estate 
therein  described  for  sale  for  four  consecutive   weeks  before  the  day 

of   sale   on in    the  ,   a   newspaper   published   and   of 

general    circulation    in    said    county,    stating   in    said    notice   the   time, 
nlace  and   terms  of  said   sale,   and   on   the  day   of  , 


261  FORMS. 

19 ,    I   attended   at   the  door   of   the    corrt   house   of   said   county, 

and    at    the    hour    of    o'clock    m.,    I    offered    said    real 

estate   for  sale   and   then   and   there   publicly  struck  off  and   sold  the 

same  to  for  the  sum   of   $ ,  he  being  the  highest  and 

best    bidder    therefor,    and    that    being    more    than    two-thirds    of    the 

appraised    value   thereof.  , 

Administrator  of  the  estate  of ,  deceased 

Dated  day  of  ,   19 . 

No.  136.     The  publication  of  notice  of  sale  of  said  real  estate. 

Probate  Court,  County,  Ohio. 

(Same  caption  as  in   the  petition.) 

In  pursuance  of  the  order  of  sale  to  me  directed  by  the   Probate 

Court  of  County,   Ohio,   in   said   cause,    I    will   offer   for  sale 

at    public    auction    at    the    door    of    the    court    house    in    the    City    of 

,   County,   Ohio,    on    the day    of    , 

A.    D.t   at  o'clock  m.,   the   following   described 

real    estate    situated    in   the    County    of   and    State    of   Ohio, 

and  in  the  City  of  ,  and  bounded   and   described  as   follows: 

(Here  insert  description  of  real  estate),  appraised  at  $ .     Terms 

of  sale:  one-third  cash  in  hand  on  the  day  of  sale,  one-third  in  one 
year  and  one-third  in  two  years  from  the  day  of  sale,  the  deferred 
payments    to    be    secured   by    first   mortgage    on    the    real   estate    sold, 

and  to  draw  interest  at  the  rate  of  per  cent,  per  annum,  payable 

annually.  . 

As  Administrator  of  — — ,  deceased. 

No.  137.     Proof  of  publication  of  the  aforesaid  notice. 

,   being   duly   sworn,   deposes   and   says   that  the  notice  of 

which   a   true   copy   is   hereto   attached   was   published    in  ,   a 

newspaper  printed  in  and  of  general  circulation   of  County, 

once    a    week    for    consecutive    weeks,    commencing    on    the 

day  of  ,   19 ,   to-wit:    on  . 


Sworn  to  and  subscribed  before  me  this  day  of 

19 .  


Notary  Public  in  and  for  County,   0. 

No.  138.     Confirmation  of  administrator's  sale  and  order  for 
deed. 

Probate  Court.  County,  Ohio. 

(Same  caption  as   in   the  petition.) 

This  day  of  ,  19 .  this  cause  came  on   to  be 

heard  upon  the  return  filed  by  plaintiff  of  his  proceedings  under  the 
order  of  sale  herein  issued  on  the  day  of  19 , 


MERVriNE   ON    REAL,    ACTIONS.  262 

and  upon  the  proof  of  publication  of  the  notice  of  sale  under  said 
order  of  sale,  and  the  court  having  carefully  examined  said  return 
and  proceedings  of  plaintiff  and  being  duly  fully  advised  in  the  prem- 
ises finds  that  plaintiff  duly  advertised  said  sale  according  to  law; 
that  said  return  of  said  order  of  sale  is  in  all  respects  true  and 
correct   and    that   the   sale   of   said   premises   so   made   by   plaintiff   to 

has   been    duly   male  according  to  the    former  order  of  the 

court,  and  the  statute  in  such  case  made  and  provided,  and  should 
be  approved  and  confirmed.  It  is  therefore  by  the  court  considered, 
adjudged  and  decreed  that  said  return  of  said  order  of  sale,  said 
proceedings  of  plaintiff  and  said  sale  be,  and  the  same  are,  hereby 
approved  and   confirmed,   and    said   plaintiff   as   such   administrator   is 

ordered    to    execute,    acknowledge    and    deliver    unto    said    a 

good  and  proper  deed  for  the  said  premises  upon  said  purchaser 
paying  the  purchase  price  therefor,  and  executing  the  notes  secured 
by  mortgage  on  said  real  estate  to  secure  the  unpaid  deferred  pay- 
ments   of   said    purchase    money    according    to    said    order   of    sale    or 

upon    said    purchaser   paying   said    full    purchase    price,    $ ,    cash 

in   hand. 

No.  139.     Administrator's  deed  in  sale  of  real  estate  by  pro- 
bate court  at  public  auction  free  of  dower. 

Know  all  Men  by   These  Presents,  That  whereas,  on  the  

day   0f   (   19 ,   was   duly    appointed   and   qualified 

as    the    administrator    of    the    estate    of  — ,    deceased,    late    of 

County,    Ohio,    by    the    Probate    Court    of    said    county,    and 

afterwards,  to-wit:  on  the day  of  ,  19 ,  said  ad- 
ministrator filed  his  certain   petition   and   then   and   there  commenced 

an    action    in    the    Probate    Court    of   County,    Ohio,    against 

et    ai,   numbered    on    the    docket   of   said    court   as   case   No. 

praying,    among   other   things,    for   an    order   of   sale   of   certain 


real  estate  therein  mentioned  and  hereinafter  described;    and 

Whereas,   such   proceedings   were   had    in   said   action   that   on  the 

day   of  ,   19 ,   said   court,   finding  the  allegations 

of  the  petition  true,  and  that  said  real  estate  ought  to  be  sold  as 
prayed    for    in    said    petition,    ordered    that    the    same    be    appraised; 

and  on  the day  of  -  — ,  19 ,  said  court  further  ordered 

that  said  administrator  proceed  according  to  law  to  sell  the  real 
estate  described  in  said  petition,  at  public  sale  for  not  less  than  two- 
thirds    the    appraised    value    thereof,    and    on    the    day    of 

,  in  pursuance  of  said  order  and  judgment,  an  order  of  sale 

of    said    real    estate    therein    described    was    issued    out   of    said    court 

under  the  seal  thereof,  to  the   said  ,  as  administrator  of  the 

estate   of   ,   deceased;    and 

Whebeas,    said    administrator,   having   caused   said    premises    to   be 
appraised,   and    the    report   of    such    appraisement   to    be   filed    in    said 

Probate  Court,   and  having  on  the   day  of  .   19         , 

returned    said   order  of  sale  to   said   court   as   commanded  -  with   his 


263  FORMS. 

proceedings  thereon,  stating,  in  substance,  that  in  obedience  to  said 
order   he   duly   advertised   the   real    estate   therein    described,    for   sale 

for    four    consecutive    weeks    before    the    day    of    sale    in    ,    a 

newspaper    printed    and    of    general    circulation    in    County, 

Ohio;    stated    in   said   notice   the    time,  place   and   terms   of   said   sale, 

and  on  the  day  of  ,  19 ,  he  attended  at  the  door 

of  the  court  house  of  said  county,  and  at  the  hour  of  o'clock 

M.,    he    offered    said    real    estate    hereinafter    described    for    sale, 

and bid   for  the  same  the  sum  of  $ ,  which,  being  the 

highest  and  best  bid  that  was  offered  and  being  more  than  two-thirds 
the  appraised  value  of  said  real  estate,  he  then  and  there  sold  the 
same   to  said   for   that  sum;    and 

Whereas,  on  the  day  of  ,  19 ,  the  said  court, 

having  examined  the  proceedings  of  the  said  — ■ ,  as  administrator 

aforesaid  under  said  order  of  sale,  and  it  appearing  to  the  court  that 
said  sale  was  in  all  respects  legally  made,  ordered  that  the  same 
be  approved  and  confirmed,  and  that  said  administrator  should  execute 
and  deliver  a  proper  deed  to  the  purchaser  of  the  real  estate  so 
sold,  all  of  which  will  more  fully  appear  on  the  records  of  said  court 
to  which  reference  is  here  made; 

Now    Therefore    I,   said   ,   as  administrator  of   the   estate 

of    ,    deceased    aforesaid,    by    virtue    of    said    judgment,    order 

of  sale,  sale  and  confirmation  and  of  the  statute  in  such  cases  made 
and    provided,    and    of    the    powers    vested    in    me,    and    for    and    m 

consideration    of   the   premises    and   the    sum   of    $ ,   paid   to   me 

by    said    ,    the    receipt    whereof    is    hereby    acknowledged,    do 

hereby  grant,  bargain,  sell  and  convey  to  the  said  ,  his  heirs 

and  assigns  forever,  the  following  real  estate,  free  of  the  dower  estate 

therein    of   ,    widow    of   ,    situated    in    the    County    of 

,  State  of  Ohio,  and  in  the  City  of  ,  and  more  partic- 
ularly described  as  follows:      (Here  insert  description  of  real  estate). 

To  Have  and  to   Hold  said   premises   with    all    the    privileges   and 

appurtenances   thereunto  belonging   unto   the  said  ,   his  heirs 

and   assigns    forever,    as    fully    and    completely    as    the    said   , 

as  such  administrator,  by  virtue  of  said  judgment,  order  of  sale,  sale 
and  confirmation  and  of  the  statute  made  and  provided  for  such 
cases,  might  or  should  sell  and  convey  the  same. 

In   Witness   Whereof,   the  said   ,  as  administrator  of  the 

estate    of    said    ,    deceased,    has    hereunto    set    his    hand    this 

day  of  ,   19 .  , 

As  Administrator  of  the  estate  of  ,  deceased. 

Signed    and    acknowledged    in   presence   of 


State  of  Ohio,   County,   ss.: 

Be  it  Remembered  that  on  this  day  of  ,   19 , 

before   me,    the   subscriber,   a   notary   public   in   and    for   said    county, 
personally   came   the   above   named  as   administrator   of  the 


MERWINE   ON    REAL    ACTIONS.  264 

estate  of  ,   deceased,   the  grantor  in  the   foregoing  deed,   and 

acknowledged  the  signing  of  the  same  to  be  his  voluntary  act  and 
deed  as  such  administrator  for  the  uses  and  uurposes  therein 
mentioned. 

In  Testimony  Whereof,  I  have  hereunto  subscribed  my  name  and 
affixed  my  official  seal  on  the  day  and  year  last  aforesaid- 


Notary  Public  in  and  for  — County,  Ohio. 

No.  140.  Answer  of  widow  consenting  to  sale  and  waiving 
assignment  of  dower  in  real  estate  by  metes  and  bounds, 
and  asking  that  the  real  estate  be  sold  free  of  her  dower, 
and  that  she  may  be  endowed  out  of  proceeds  of  sale. 

Probate  Court, —  County,  Ohio 

(Same  caption  as  in   the  petition.) 

And  now  comes  ,  one  of  the  defendants  in  the  above  en- 
titled cause,  and  voluntarily  enters  her  appearance  herein,  and  for 
answer  to  the  petition  in  this  case  filed,  says  that  she  is  the  widow 

of   ,    deceased,    and    as    such    widow    is    entitled    to    dower   in 

the    real    estate   described   in   the    petition;    that   her    age    is   ■ 

years;  that  she  freely  consents  to  said  sale  as  prayed  for  and  waives 
the  assignment  of  dower  in  said  premises  by  metes  and  bounds,  or 
in  the  rents  and  profits  thereof,  and  she  asks  the  court  that  said 
real  estate  may  be  sold  free  from  her  dower  estate  therein,  and  that 
the  value  of  such  dower  estate  may  be  allowed  and  paid  her  in  lieu 
thereof  out  of  the  proceeds  of  the  sale,  such  sum  of  money  as  the 
court  deems  the  just  and   reasonable   value  of  her   dower   interest  in 

said  real  estate.  ■ , 

Attorney  for  Defendant. 

The  answer  should  be  verified  as  other  answers  are  verified. 

No.  141.  The  order  of  sale  where  ^eal  estate  is  sold  free  of 
dower  of  widow. 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of 
plaintiff  filed  for  the  purpose  of  having  the  real  estate  therein  de- 
scribed sold  to  pay  the  debts  and  costs  of  administration  of  the 
deceased,  and  also  upon  the  return  of  summons  issued  and  the  answer 

of ,  widow  of  said  deceased,  and  the  court  being  fully  advised 

in    the    premises    finds    that    all    of    the    defendants    herein    have    been 

legally    served     with     summons    and    that    ,    widow    of    said 

— ,  decedent,  has  entered  her  appearance  herein   in    writing  and 
that  all  of  the  parties  hereto  have  been  notified  of  the  pendency  -  c 
prayer  of  the  petition  as  prescribed   by  law. 

The  court   further  finds  that  — ,  widow  of  the  said  — — ■, 

deceased,  waives  as  in  her  answer  herein  set  forth,  the  assignment 
of  her   dower   in   said   real   estate    in   metes   and   bounds  and    desires 


265  FORMS. 

that  the  same  may  be  sold  free  and  clear  of  her  dower  and  that  the 
court  set  off  to  her  out  of  the  proceeds  of  the  sale  of  said  premises 
such  a  sum  of  money  as  may  be  just  and  reasonable  in  lieu  of 
her  said  dower  interest,  and  the  court  finds  that  the  allegations  of 
said  petition  are  true  and  that  it  is  necessary  to  sell  the  real  estate 
in  the  petition  described  to  pay  the  debts  of  the  deceased  and  the 
costs  of  administration.  The  court  further  finds  that  the  real  estate 
in    the    petition    described    was    appraised    by    the    appraisers    of    the 

personal    estate    at   $ ,   and   the   court   also   finds    that    the   bond 

heretofore   given    by    the    plaintiff   as    administrator   of   the    estate    in 

the  sum  of  $ is  sufficient;    it  is  therefore  ordered  that  further 

appraisement  and  additional  bond   be  dispensed   with. 

It  is  now  ordered  that  said  ,  as  such  administrator,  pro- 
ceed to  advertise  for  sale  at  the  door  of  the  court  house  said  real 
estate  for  four  consecutive  weeks  in  a  newspaper  of  general  circula- 
tion of  said  county  in  which  said  land  is  situated,  and  he  is  further 
ordered  to  sell  the  same  at  not  less  than  two-thirds  of  the  appraised 
value  and  upon  the  following  terms,  to-wit:  one-third  cash  in  hand 
and  the  balance,  one-half  in  nine  months  and  one-half  in  eighteen 
months  from  day  of  sale,  deferred  payments  to  be  secured  by  mortgage 
on  the  premises  sold  and  to  bear  interest.  And  said  plaintiff  is  ordered 
to  make   his   return  to  this  court   immediately  after  such  sale. 

No.  142.     Application  for  the  appointment  of  guardian  ad  litem 
and  a  trustee  to  answer  for  an  insane  defendant. 

Probate  Court,  County,  Ohio. 

(Same  caption  as   in   the  petition.) 

Now  comes  ■ — — ,  attorney  for  plaintiff  herein,   and   represents 

to  the  court  that  the   defendant  is  a  minor  under  years  of 

age  and  that  said  minor  has  no  legal  guardian,  and  that  it  is  neces- 
sary to  appoint  a  guardian  ad  litem  for  said  minor  defendant  for 
this  cause. 

He   further    represents   to   the   court   that  the   defendant,   , 

has  been  duly  served  by  publication,  and  that  she  is  an  insane  person 
and  that  it  is  necessary  to  appoint  a  trustee  for  said  defendant  for 
this  cause;  that  said  infant  defendant  and  said  insane  defendant 
both  have  an  interest  in  said  real  estate,  and  that  it  is  necessary  to 
appoint  such  guardian  and  such  trustee  for  said  defendants,  resoec- 
tively,  before  a  full  and  complete  determination  of  this  suit  can  be 
had  in  the  premises. 

Plaintiff     further     represents     that    be     appointed     such 

guardian   ad   litem,   and   that be   appointed   such   trustee   for 

said   insane    defendant.     Plaintiff   further   represents    that  said    insan 
defendant    is    a    non-resident    of    Ohio,    and    that    he    has    an    interest 
in    the    real    estate    described    in   the   petition    of   the    value   of   about 
$ .  . 

Attorney   for  Plaintiffs. 
This    application    should   be   verified. 


MEKWINE    ON    KEAL    ACTIONS.  266 

No.  143.     Order  of  the  court  appointing  guardian  ad  litem  and 
a  trustee  for  an  insane  defendant. 

Probate  Court.  County.  Ohio. 

(Same  caption  as  in  the  petition.) 

This  cause,  coming  on  to  be  heard  this  day  on  the  application 
for  the  appointment  of  a  guardian  ad  litem  for  the  minor  defendant, 

— ,    and    the    insane    defendant,    ,    and    it    appearing    to 

the  court  that  said  minor  defendant  has  been  duly  served  with  sum- 
mons herein   and    notified   of   the   pendency   of   this   action,   the   court, 

on  motion  of  ,  attorney  for  plaintiff,  hereby  appoints  ■ 

as   guardian    ad   litem    for   said    minor    defendant,    and    said    

came  in  open  court  and  accepted  said   appointment. 

And  this  cause  coming  on  further  to  be  heard  on  the  application 

of  ,   attorney   for   plaintiff,    for   the   appointment   of  a   trustee 

to    answer    for    the    insane    defendant,    ,    and    it    appearing 

to   the  court  that  said  has  been  duly  and  legally  served  by 

publication  of  the  pendency  of  this  suit  and  the  nature  thereof,  the 
court  finds  that  it  is  necessary  to   appoint   a.  trustee   for  said   insane 

defendant    as    in    said    application    set    forth,    doth    appoint    , 

trustee  to  answer  for  said  insane  defendant  herein.  And  thereupon 
said  ' in  open  court  accepted  said  appointment. 


No.  344.     Answer  of  guardian  ad  litem  for  infant  defendant. 

Now    comes   ,    guardian    ad    litem    heretofore    appointed    in 

this  cause  by  the  said  court  for  the  said   .   minor  defendant, 

by  the  petition,  and  for  his  answer  to  said  petition  denies  all  the 
material  allegations  therein  contained  prejudicial  to  said  minor  de- 
fendant, and  further  says  that  his  ward  is  of  tender  years  and  un- 
acquainted with  the  law  in  such  cases,  and  he  therefore  prays  the 
court  to  protect  the  rights  of  said  infant  in  said  case  and  to  grant 
said  infant  such  other  and  further  relief  as  may  be  just  and  proper. 


No.  145.     Answer  of  a  trustee  for  an  insane  person. 

Probate  Court,  — — County,  Ohio. 

(Same  caption  as  in  the  petition.) 

Xow  comes  and  avers  that  he  is  the  qualified  and  acting 

trustee  for  one  ,  an  insane  person  and  non-resident  of  Ohio; 

that  said  is  one  of  the  children  of  one  ,  now  de- 
ceased; that  said  insane  defendant  was  insane  prior  to  the  commence- 
ment of  this  action,  and  that  she  is  a  necessary  party  to  the  deter- 
mination   of   the    rights   of  all    the    parties   hereto;    that   she   is  in  an 

insane    asylum    at   in    the    State    of   and   that   her 

defense   can   only   be   made   by   a   trustee. 

Your  trustee  therefore  prays  the  court  to  protect  the   interests  of 


267  FOKMS. 

said    insane    person    and    for   such   other   and    further   protection    and 
relief  to  which    in  law  and  equity    as  such  trustee    he  is  eutitled. 


No.  146.  Application  to  have  the  real  estate  described  in  peti- 
tion of  an  administrator  to  sell  lands  to  pay  debts,  sur- 
veyed and  platted. 

Probate  Court,  County,  Ohio. 

(Same  caption  as   in   the  petition.) 

Now    comes    the   said   ,    executor    under   the   last   will    and 

testament    of    ,    deceased,    and    represents    to    the    court    that 

the   real    estate   of   said    decedent   consisted    of  acres   in   one 

tract  situated  in  the  corporation  limits  of  the  City  of  ,  Ohio, 

and   adjacent    to    and    immediately   north   of  Street    therein; 

that  said  tract  of  land  described  in  the  petition  cannot  be  sold  to 
good  advantage  in  one  tract  as  a  whole,  and  that  it  would  be  greatly 
to  the  advantage  of  said  real  estate  if  said  tract  is  surveyed  and 
platted  into  suitable  building  lots,  and  the  same  be  legally  platted, 
and  the  plat,  after  approval  thereof  of  this  court  and  the  city  as 
required  by  law,  be  recorded  in  a  proper  record  as  required  by  law; 
that  said  land  will  sell  at  better  advantage  and  a  larger  sum  can  be 
realized  therefrom  if  so  surveyed,  platted  into  lots,  appraised  and 
sold  in  building  lots  than  if  appraised  and  sold  as  one  tract  as 
described  in  the  petition  herein;  that  it  will  be  better  for  said  estate 
and  the  legatees  under  the  will  of  said  decedent  to  plat  and  sell 
in  building  lots,  and  that  said  estate  can  be  closed  up  and  settled 
sooner  by  this  method  than  it  can  be  if  sold  as  a  whole  in  one 
tract  and  for  the  further  reason  that  if  sold  as  a  whole  in  one 
tract,  the  estate  will  be  greatly  sacrificed. 

The  above  application  may  be  verified. 


No.  147.     The  affidavit  in  support  of  the  above  application. 

Prorate  Court,  County,  Ohio. 

(Same  caption  as  in  the  petition.) 

State  of  Ohio,   County,   ss.: 

,    of   lawful    age,    being   first   duly   sworn,   says   that    he   is 

one    of    the    executors    of    the    last    will    and    testament    of    , 

deceased,  and  one  of  the  heirs  of  said  decedent  and  a  legatee  under 
said  will;  that  if  said  tract  of  land  described  in  the  petition  herein 
be  sold  as  a  whole,  it  will  be  sold  at  a  great  sacrifice  to  the  estate 

and  the  legatees  in  said  will  named;   that  said  tract  consists  of  

acres  of  land  in  one  tract,  and  that  if  the  same  is  surveyed,  platted 
and  laid  out  into  lots,  a  larger  sum  can  be  realized  therefrom  than 
if  sold  in  a  whole  tract;    that  the  executors  of  said   estate  have    for 


MF.RWINE    ON    REAL    ACTIONS.  268 

nearly  years  sought  a  bidder  or  bidders  for  said  land,  and  are 

unable  to  find  any,  and  that  said  real  estate  described  in  the  petition 
can  be  sold  in  lots,  if  the  same  is  surveyed  and  platted  into  suitable 
building  lots.  — • 

Sworn  to  before  me  and  subscribed  in  my  presence  on  this  

day  of  ,  19 .  , 


Notary  Public, County,  Ohio. 


No.  148.  Order  of  the  court  authorizing  the  real  estate  de- 
scribed in  the  petition  to  be  surveyed  and  platted  and  order 
of  the  court  confirming-  the  same — Order  of  the  court 
approving  and  confirming  said  survey,  plat  and  addition. 

Probate  Coukt,  County,  Ohio. 

(Same  caption  as  in  the  petition.) 

This  day  this  cause  came  on  to  be  heard  on  the  written  applica- 
tion of  — ,  executor  of  the  last  will  and  testament  of  , 

deceased,  to  survey  and  plat  said  lands  into  building  lots  and  appraise 
and  sell  the  same  instead  of  selling  the  real  estate  described  in 
the  petition  as  a  whole,  and  upon  careful  consideration  thereof,  the 
court  finds  the  reasons  stated  for  said  application  to  be  true,  and 
that  it  will  be  for  the  best  interest  of  said  estate  to  survey  and 
plat  said  lands  into  lots  and  sell  the  same  as  such.  It  is  therefore 
ordered  that  said  executor  proceed  without  delay  to  survey  and 
plat  said  real  estate  described  in  the  petition  into  building  lots,  and 
that  as  soon  as  said  land  is  properly  surveyed  and  platted  and  said 
plat  accepted  and  approved  by  the  persons  appointed  by  law  to  approve 
the  same,  then  that  plaintiffs  cause  the  said  building  lots,  as  set 
forth  in  said  plat,  to  be  appraised  and  to  return  their  proceedings 
in  the  premises  to  this  court  for  further  order. 

This  clay  this  cause  came  on  to  be  heard  on  the  application  here- 
tofore granted  herein,  authorizing  plaintiff  to  plat  and  lay  out  said 
land  in  the  petition  described,  into  building  lots,  and  now  said 
plaintiffs   who   are   executors   of  said   estate,   producing  in   open   court 

said    plat   of   said   land,    designated   as  Addition   to   said   city, 

and    said    plat    having    been    approved    by    the    persons    appointed    by 

law    to    approve    the    same,    and    the   of   said   county    having 

transferred  the  lots  designated  therein  according  to  law  upon  the 
•  books  of  said  county,  the  court  doth  find  that  all  the  pro- 
ceedings under  said  application  to  plat  said  land  have  been  in  con- 
formity to  law,  does  hereby  approve  and  confirm  all  of  said  proceed- 
ings, and  said  plat  having  this  day  been  filed  for  record  in  the 
office  of  the  recorder  of  County  according  to  law,  the  same 


269  FORMS. 

is    hereby    approved,    and    said    plat    will    be    found    of    record    in    the 

said -recorder's    office    in    Plat    Book   at    page   ,   and    all 

of    said    proceedings    are    hereby    approved    and    confirmed,    and    said 

plaintiffs    by    the    oaths    of    ,    and    three 

judicious,  disinterested  freeholders  of  the  vicinity,  are  hereby  ap- 
pointed to  appraise  said  lots  described  in  said  plat,  and  make  their 
return  to  this  court  of  their  appraisement  proceedings  for  approval 
and   confirmation. 


No.  149.  Order  of  the  court  on  the  hearing  for  assignment  of 
homestead  and  dower  and  order  of  appraisement  subject  to 
dower  and  homestead. 

Probate  Court.  County,  Ohio. 

(Same  caption  as  in  the  petition.) 

This  day  this  cause  came  on  to  be  heard  upon  the  petition,  evi- 
dence and  testimony,  and  the  court  being  fully  advised  in  the  premises, 
finds  that  all  the  defendants  herein  have  been  duly  and  legally  served 
with  process,  or  have  voluntarily  entered  their  appearance  nerein 
and  are  now  properly  before  the  court;  that  the  statements  and 
allegations  in  said  petition  are  true;  that  said  decedent  left  a  family 
homestead  and  the  widow  and and  minor  chil- 
dren, unmarried  and  composing  part  of  decedent's  family  at  the 
time  of  his  death,  it  is  ordered  that  the  appraisers  hereinafter  ap- 
pointed proceed  to  set  off  and  assign  such  homestead  by  metes  and 
bounds   not    exceeding   $1,000.00    in    value.      And    it    further   appearing 

that  the  said  ,  widow  of  said  deceased,  is  entitled  to  aower 

in  the  real  estate  described  in  the  petition,  it  is  further  ordered  that 
said  appraisers  set  off  and  assign  to  her  by  metes  and  bounds  one 
equal  third  part  of  the  whole  lands  in  which  she  is  entitled  to  dower; 
but  if,  on  view,  said  appraisers  find  that  dower  cannot  be  assigned, 
they  shall  then  assign  such  dower  especially  as  of  the  rents  and 
profits. 

And  the  court  being  satisfied  that  it  is  necessary  to  sell  the 
real  estate  of  said  decedent,  described  in  the  petition  to  pay  his 
debts,  it  is  ordered  that  ,  and  ,  three  judici- 
ous, disinterested  men  of  the  vicinity  who  are  freeholders,  be  and 
they  hereby  are,  appointed  to  appraise  said  lands  and  tenements  at 
their  true  value   in  money   subject   to  said   homestead  and   dower. 

It  is  further  ordered  that  said  appraisers  be  sworn  as  required 
by  law  and  afterwards,  upon  actual  view,  perform  the  duties  required 
of    them    and    make    return    of    their    proceedings    in    writing    to    this 

court   on   or   before   the  day   of  ,    19 .    .And    this 

cause  is  continued.  — 


Probate  Judge. 


MEKWINE   ON    REAL    ACTIONS.  270 

No.  150.     Order  from  the  court  to  the  plaintiff  for  assignment 
of  homestead  and  dower  and  appraisement. 

Probate  Court,  — -  County,  Ohio. 

(Same  caption  as  in  the  petition.) 

State  of  Ohio,   County,   ss.: 

To  - ,    as  Administrator   of   the   estate   of ,    deceased, 

Greeting: 

In  ohedience  to  an  order  and  decree  of  the  Prohate  Court  within 
and   for  said   county   made  this   day   in   a   certain   cause    wherein   you 

as   are    plaintiff,    and    et    al,    are    defendants,    you    are 

commanded    that    by    the    oaths    of    ,    and    , 

three  judicious,  disinterested  men  of  the  vicinity,  not  of  kin  to  the 
petitioner,  who  are  freeholders  of  the  county  in  which  said  real 
estate    is    situated,    and    upon    actual    view,    you    cause    to    be    set   off 

and    assigned    to    composing    part    of    decedent's    family    at 

the  time  of  his  death,  by  metes  and  bounds,  a  homestead  not  ex- 
ceeding $1,000  in  value;    and  to  be  set  off  and  assigned  to  , 

widow  of  the  said  ,   deceased,   one   full   and  equal   third   part 

as   and    for   her   dower   estate    in    the    following   described    real    estate 

situated   in  the  County  of  in  the   State   of  Ohio  and   in  the 

City  of  ,  and  more  particularly  described  as  follows:      (Here 

insert   description  of  real   estate). 

And  that  said  appraisers,  having  set  off  and  assigned  said  home- 
stead and  dower  as  afcresaid,  do.  upon  their  oaths  and  actual  view 
as  aforesaid,  make  a  just  valuation  and  appraisement  according  to 
law  of  said  real  estate,  subject  to  such  homestead  and  dower  above 
assigned.  You  will  make  due  return  of  your  proceedings  to  this 
court  forthwith   upon  execution   of  this  order. 

Witness   my    signature   and   seal   of   said    court   at   ,   Ohio, 

this  day  of  ,  19 .  , 

Probate   Judge. 

No.  151.     The  administrator's  return  of  his  proceedings  under 
the  above  order. 

To   the   Probate   Court  of  County,    Ohio: 

In    obedience    to    the    foregoing    order,    I    have    caused    the    same    to 
be  duly   executed,  as  will  appear   by   the   proceedings   hereto   attached. 
Dated   the  day  of  ,   19 . 


As  Administrator  of  the  estate  of .  deceased. 

No.  152.*    The  oath  of  appraisers. 

The    State    of   Ohio,   County,    ss.: 

We,    the    undersigned    appraisers,    do    make    solemn    oath    that    we 
will,   upon   actual   view,  honestly  and   impartially   appraise  the  within 


271  FORMS. 

described  real  estate  at  its  cash  value  and  perform  the  duties  required 
of  us  in  pursuance  of  the  foregoing  order. 


Appraisers. 
Sworn  to  before  me  and  signed   in  my   presence  this  day  of 

1  o  . 


-    19- 

Notary  Public, County,  Ohio. 

No.  153.  The  return  of  the  appraisers  assigning  homestead 
and  dower  and  appraising  the  real  estate,  subject  to  home- 
stead and  dower. 

In  obedience  to  the  foregoing  order,  after  first  being  duly  sworn, 
and  upon  actual  view  of  the  premises  herein  described,  we,  the  under- 
signed appraisers,   do  set  off  and  assign  to  ,   composing  part 

of  decedent's  family  at  the  time  of  his  death,  a  homestead  not  ex- 
ceeding $1,000.00  in  value,  being  so  much  of  said  real  estate  situated 

in  the  County  of  ,  in  the  State  of  Ohio  and  in  ,  and 

more  particularly  described  as  follows:  (Here  insert  description  of 
real  estate  assigned  as  a  homestead ) . 

And  we  do  set  off  and  assign  to ,  widow  of  said  , 

deceased,  as  and  for  her  dower  estate  in  said  premises,  so  much 
thereof  as  is  situated  in  the  following  boundaries,  to-wit:  (Here 
insert  description  of  real  estate  assigned  as  dower).  And  subject  to 
and  encumbered  by  said  homestead  and  dower,  we  do  estimate 
the  value  of  said  real  estate  at  $ . 

Given  under  our  hands  this  day  of  ,  19 . 


No.  154.     Order  of  the  court  dismissing  petition  of  an  admin- 
istrator at  his  costs. 

(Same  caption  as  in  the  petition.) 

This    day    this    cause    came    on    to    be   heard    upon    the    petition    of 

,  as  administrator  of  the  estate  of  ,  deceased,  for  the 

sale  of  real  estate  to  pay  debts,  and  the  answer  of ,  one  of  the 

heirs  of  said  deceased,  and  was  submitted  to  the  court  upon  the 
evidence,  and  upon  due  consideration  thereof  the  court  finds  that 
upon  the  issues  joined  in  favor  of  said  defendant,  that  all  of  the  debts 

of  said  -,   deceased,   have  been   paid  and   discharged,  and   that 

there  is  no  reason  for  sale  of  any  of  the  real  estate  described  in  the 
petition. 

It  is  therefore  ordered,  adjudged  and  decreed  that  plaintiff's  peti- 
tion be.  and  the  same  is  hereby  dismissed  at  plaintiff's  costs,  taxed 
at   $ . 


MKRWTNE    ON    REAL    ACTIONS.  272 

No.  155.     Affidavit  to  obtain  service  upon  defendants  by  pub- 
lication. 

(Same  caption  as  in  the  petition.) 

Affidavit  to  Obtain  Service  By  Publication. 

,  being  duly  sworn,  says  that  the  defendant  is  a 

non-resident  of  Ohio,  and  that  service  of  summons  on  him  in  this 
action  can  not  be  made  in  this  State;  that  the  residence  of  the  defend- 
ants    and  are  unknown  to  plaintiff  and  can  not,  with 

reasonable    diligence,    be    ascertained,    that    the    residence    of    

is  at  ,  and   that   service   of  summons   can  not  be  made  upon 

said  defendants,  and  that  this  action  is  one  of  those  mentioned  in 
Section  504S  of  the  Revised  Statutes  of  Ohio. 


Sworn  to   before  me  and  subscribed   in   my  presence  on   this 
day  of  ,  19 . 


Notary  Public, County,  Ohio. 

No.  156.     Notice  to  parties  by  publication. 

(Same  caption  as   in   the  petition.) 

,  who  resides  at  ,  in  County,  of  


and  and  ,   whose  places   of   residence   are   unknown, 

and   the   unknown   heirs   of  ,    deceased,    will    take   notice   that 

,  as  administrator  of  the  estate  of  ,  deceased,  on  the 

day  of  ,   19 ,   filed   his   petition   in   the  Probate  Court 


within  and  for  the  County  of  ,  and  State  of  Ohio,  wherein  he 

as  such  administrator    is  plaintiff  and  et  al,  are  defendants, 

alleging  that  the  real  estate  of  said  decedent  is  insufficient  to  pay  his 
debts  and  the  charge  of  administering  his  estate,  and  that  he  died 
seized   in  fee  simple  of  the   following  described   real  estate  situate  in 

the  County   of ,   in    the   State   of  Ohio,   and   in ,   and 

more  particularly  described  as  follows,  to-wit:   (Here  insert  description  of 

real  estate);   and  that  ,  as  widow  of  said  decedent,  is  entitled 

to    dower    in   said    premises.      The   prayer   of   said    petition    is   for   the 

assignment  of  dower  to  the  said  ;  for  a  sale  of  said  real  estate 

subjecl  to  such  dower  estate,  and  for  the  payment  of  debts  and  charges 
aforesaid. 

The   persons   above   named    will    take  notice   that   they   are   parties 
to  said  action,  and   that  they  are  required  to  answer  the  same  on  or 

before   the  day  of  ,   19 ,   or  judgment   will    be   taken 

against    them. 


As  Administrator  of  ,  deceased. 


273  FORMS. 

No.  157.  The  certificate  of  a  justice  of  the  peace  appointing 
appraiser  to  serve  instead  of  appraiser  appointed  by  the 
court. 

(Same  caption  as  in  the  petition.) 

To  ,  of  County: 

You  are  hereby  appointed  in  the  place  of  ,  heretofore  ap- 
pointed   by    the   court   and   who   cannot  serve   as   appraiser   herein,   to 

appraise,  on  oath,  the  real  estate  of  .  late  of  County, 

deceased.  You  will  deliver  this  order  to  the  administrator  or  execu- 
tor of  said  deceased. 

Given  under  my  hand  this  day  of  ,  19 . 


Justice    of    the    Peace. 


No.  158.  Motion  asking-  that  the  appraisement  and  sale  of  the 
real  estate  described  in  the  petition  be  vacated  and  set 
aside. 

(Same  caption  as  in  the  petition.) 

Now  comes  ,  one  of  the  defendants  herein,  and  who  has  an 

interest  in  the  real  estate  described  in  the  petition  as  an  heir  at  law 

of  said  ,  deceased,  and  moves  the  court  to  vacate  and  set  aside 

the  appraisement  and  sale   of  real  estate  heretofore  made   herein  for 
the  reasons: 

1.  That  said  appraisement  was  returned  on  one  day,  and  on  the 
same  day  thereof  said  appraisement  was  confirmed,  and  this  defendant 
did  not  have  an  opportunity  to  make  any  objection  to  said  appraise- 
ment before  the  confirmation  of  the  same. 

2.  Said  appraisement  was  much  lower  than  the  actual  value  of 
said    real   estate. 

3.  Because    said    administrator    by purchased    said    real 

estate  for  himself,  although  this  fact  does  not  appear  upon  the  records 
of  this   case. 

4.  One  of  the  appraisers  of  said  real  estate  was  not  a  freeholder. 

5.  Another  of  said  appraisers  did  not  enter  upon  and  inspect 
said   real   estate   upon   actual   view   as   required   by   law. 


Attorney  for  Defendant. 


No.  159.     Affidavit  in  support  of  motion  to  set  aside  appraise- 
ment and  sale  of  real  estate. 

(Same  caption  as  in  the  petition.) 

State  of  Ohio,  County,   ss.: 

being   duly   sworn,    says   that   he   is   a   real   estate  agent, 


having  had  more  than  years'  experience  in  the  purchase  and 


MERWINE    ON    REAL    ACTIONS.  274 

sale  of  real  estate  adjacent  to  the  real  estate  described  in  the  petition 
and  sought  to  be  sold  in  this  action;  that  he  is  well  acquainted  with 
values  of  said  real  estate  in  that  vicinity;  that  the  real  estate  ap- 
praised herein  and  sold  herein  is  worth  a  great  deal  more  money 
than  for  which  the  same  had  been  appraised;  that  he  was  present 
at  the  time  said  real  estate  described  in  the  petition  was  appraised, 
and   that   the    appraisement   was   made    by   each   of   the   appraisers   in 

the     office     of   and    far    from    said    real    estate;    that    said 

administrator,  immediately  after  the  sale  of  said  premises  stated  to 
this  affiant  in  the  presence  of  other  witnesses  that  he  was  purchasing 
said  real  estate  although  the  same  had  been  bid  in  by  . 


Sworn  to  before  me   and  subscribed   in  my   presence  on  this  

day  of ,  1909.  , 

Notary  Public,  County,  Ohio. 

No.  160.     Order  of  the  court  sustaining  the  motion  to  set  aside 
an  appraisement  and  sale  of  real  estate. 

(Same  caption  as  in  the  petition.) 

This    cause    came    on    to    be    heard    upon    the    motion    of 
one  of  the  defendants  herein,  and  one  of  the  heirs  at  law  of 


deceased,  to  vacate  and  set  aside  the  appraisement  and  sale  of  the 
real  estate  described  in  the  petition  herein,  and  was  heard  by  the 
court  upon  the  affidavits  filed  herein  and  upon  oral  testimony  in  open 
court,  and  the  court  being  fully  advised  in  the  premises,  finds  that  the 
facts  stated  and  allegations  contained  in  said  motion  are  true  and  the 
court   doth   hereby   sustain  said   motion. 

It  is  therefore  ordered,  adjudged  and  decreed  that  said  appraise- 
ment of  real  estate  be,  and  the  same  is  hereby  vacated,  set  aside 
and  held  for  naught,  and  that  the  sale  of  said  real  estate  be,  and  the 
same  is  hereby  set  aside,  vacated  and  held  for  naught.     It  is  further 

ordered,   adjudged    and    decreed   that    the    appointment   of   , 

ancj >  appraisers  herein  appointed  in  this  case,  be,  and 


the  same  is  hereby  vacated,  set  aside  and  held  for  naught 
It  is  further  ordered,  adjudged  and  decreed  that 


an(j    _ (    three    judicious    and    disinterested    freeholders    of    the 

county,  after  being  first  duly  sworn,  and  upon  actual  view  of  the  real 
estate   described    in   the   petition,   appraise   the   same   at   its  true   cash 

value,  free  of  the  dower  estate  of  the  said  ,  widow  of , 

deceased. 

No.  161.  Order  of  court  setting  aside  appraisement  of  real 
estate,  appointing  new  appraisers  and  ordering  a  sale  of 
real  estate  under  a  former  order  of  sale. 

(Same  caption  as  in  the  petition.) 

This  cause  came  on  to  be  heard  on  the  application  of  the  plaintiff 
for  a  new  appraisement  of  the  real  estate  herein,  and  it  having  been 


275  FORMS. 

made  to  appear  to  the  court  that  said  real  estate  heretofore  ordered 
to  be  sold  herein  has  been  twice  offered  for  sale  under  Che  present 
appraisement,  and  that  said  real  estate  remains  unsold  for  want  of 
bidders,  it  is  now  ordered  that  said  appraisement  be  set  aside  and  a 

reappraisement  of  the  same  be  made  by  the  oaths  of ,  ■ 

and    ,    three    judicious    and    disinterested    freeholders    of    the 

vicinity,  whom  the  court  hereby  appoints  for  that  purpose. 

It  is  further  ordered,  adjudged  and  decreed  that  said  plaintiff 
thereupon  proceed  to  sell  said  real  estate,  subject  to  any  such  re- 
appraisement  thereof  in  accordance  with  a  former  order  of  this  court. 

No.  162.     Order  of  court  fixing  price  at  which  real  estate  may- 
be sold. 

(Same  caption  as  in  the  petition.) 

Upon  the  application  of  plaintiff  herein,  and  it  having  been  made 
to  appear  to  the  court  that  the  real  estate  described  in  the  petition 
heretofore  ordered  to  be  sold,  has  been  offered  for  sale  by  the 
plaintiffs  herein  under  the  present  appraisement,  and  that  said  real 
estate  still  remains  unsold  for  want  of  bidders,  it  is  now  ordered 
that  said  real  estate  be  sold  for  the  sum  of  ? . 


CHAPTER    VI. 


SALE   OF  WARD'S  REAL  ESTATE  BY  GUARDIAN. 


SECTION. 

245.  General   discussion — Power  to 

sell  ward's  real  estate 
purely    statutory. 

246.  What    courts    have    power    to 

order  sale  of  ward's  real 
estate. 

247.  The    nature   of   such    actions. 

248.  Procedure    incidental    to    such 

actions. 

249.  In   what   cases   guardian    may 

sell  ward's  real  estate. 

250.  Effect   of    sale   of   ward's   real 

estate  by  guardian,  after 
ward  has  failed  to  select 
guardian. 

251.  Procedure   when    same    person 

is  guardian  for  two  or 
more  wards  who  are  joint 
owners  of  the  same  real 
estate. 

252.  Petition    for    sale    of    real    es- 

tate and  the  allegations 
thereof — Must  contain  per- 
tinent description  of  ward's 
real    estate. 


SECTION. 

253.  Guardian  may  notify  defend- 
ants of  the  action — -Parties 
to    the    action. 

Hearing  of  the  petition — Ap- 
pointment of  appraisers — 
Survey    into    town    lots. 

Should  guardians  ad  litem  be 
appointed  for  infant  de- 
fendants? 

Appraisers   should  be  sworn. 

Before  sale  of  real  estate,  an 
additional    bond    required. 

Bonding  companies  may  exe- 
cute such  bonds  as  surety 
— Guardian  may  pay  costs 
of  the  same  out  of  his 
ward's  estate. 

The  order  of  sale — Terms  of 
the  sale — Notice — Private 
sale. 

Report  of  sale — Confirmation 
and   deed. 


254. 


255. 


256. 
257. 

258. 


259. 


260. 


Sec.  245.  General  discussion — Power  to  sell  ward's  real  estate 
purely  statutory. 
No  subject  of  the  law  of  title  to  real  estate  by  judicial  sale 
demands  as  much  care  upon  the  part  of  the  practitioner,  the  con- 
veyancer of  real  estate  and  the  examiner  of  real  estate  titles,  as 
tic  law  relating  to  the  sale  of  real  estate  by  guardian  of  infants, 
imbeciles  and  insane  persons.  This  is  so  because  there  is  no  pre- 
sumption to  ;iid  ;i  record  where  the  proceedings  arc  adverse  to  an 
infant,  and  because  the  proceedings  are  statutory  and  every  re- 
quirement of  the  statute  favorable  to  the  infant  must  be  complied 

with.    No  court  in  this  State,  not  even  our  chancery  courts,  whose 

276 


277  SALE  of  ward's  real  estate  by  guardian.  §  246 

elastic  qualities  are  sufficient  to  seize  hold  of  almost  any  question, 
have  the  power,  without  statutory  aid,  to  order  the  sale  of  the 
lands  of  an  infant  in  this  State.  Great  care  must  be  exercised 
in  the  preparation  of  the  petition,  pleadings  and  orders  of  the 
court  to  the  end  that  all  of  them  follow  the  requirements  of  the 
statute.  Unless  there  exists  some  ground  for  the  sale  mentioned 
in  the  statute,  a  sale  canno4;  be  made;  and  if  the  guardian  be  not 
legally  appointed,  although  he  may  be  acting  as  such  guardian,  he 
cannot  sell  the  ward's  real  estate,  and  if  he  should  do  so,  the 
sale  would  be  void.1 

In  one  instance  in  this  State  a-  guardian  attempted  by  deed, 
without  an  order  of  the  court,  to  convey  certain  real  estate  of 
his  ward  to  the  county  for  road  purposes,  and  the  court  held 
that  such  power  could  only  be  extended  the  guardian  by  order 
of  the  court  authorized  by  statute ;  that  such  power  is  statutory 
to  be  complied  with,  not  only  by  the  guardian,  but  also  by  the 
court,  and  that  the  jurisdiction  even  of  courts  of  chancery  in 
such  case,  to  order  the  sale,  rested  entirely  on  legislative  enact- 
ment, saying: 

"A  guardian  has  no  power,  in  this  State,  where  the  subject  is 
regulated  by  statute,  to  sell  real  estate  of  his  ward  except  by 
order  of  the  probate  court,  in  a  proceeding  properly  instigated 
for  this  purpose. 

The  numerous  statutes  in  this  State  conferring  special 
powers  upon  guardians  in  special  cases,  do  not  authorize  a  sale 
or  conveyance  of  the  realty  *  *  *  either  expressly  or  by 
implication.  Indeed,  if  any  implication  arises  from  them,  it  is 
rather  that  such  power,  wThich  would  necessarily  include  most 
of  the  special  powers  granted  by  legislation,  does  not  exist."2 

Sec.  246.     What  courts  have  power  to  order  sale  of  ward 's  real 
estate. 

Only  such  courts  have  power  as  are  designated  by  the  statute 
to  make  the  order.  Any  other  court  undertaking  t'»  make  The 
order,  will  not  give  the  order  any  legal  sanction.     In  this  State 

i  Frederick    v.    Pickett,     19    Wis.  tleman  v.   Pelfe,   50   Mo.   583:    Hig- 

541;   Severns  v.  (,*<>rke.  3  Saw.  353;  ginbotbam   v.   Thomas,  9  Kan.   328; 

Galpin  v.  Page,   IS  Wall.  350,  cited  McGunniea  v.   Kiee,  48  la.  .SCI. 

in  The  American  Law  of  Guardian-  -State  v.  Commissioners,  30  O.  S. 

ship    by    Woerner,    235.      For   other  01;    see  also  Rogers  v.   Dill,  (i  Hill, 

cases    showing    this     principle,     see  415;    Williams    case,    3    Bland    Ch. 

Leary    v.    Fletcher.    1    Iredell.    250;  (Md.)     186;    Appeal    of    Stoughton, 

Murray  v.  Purdy,  66  Mo.  606;   Cas-  88  Pa.  St.  198;   Field  v.  Scheifiin,  7 


§  247  MERWINE    ON    REAL    ACTIONS.  278 

the  jurisdiction  is  conferred  on  the  probate  court  and  the  court 
of  common  pleas.3 

But  while  the  probate  court's  jurisdiction  and  that  of  the 
common  pleas  court  are  concurrent,  yet,  if  the  action  to  sell  a 
ward's  real  estate  is  filed  in  the  probate  court,  it  must  be  in  the 
probate  court  in  which  the  guardian  was  appointed;  for  no  other 
probate  court,  has  jurisdiction  to  hear  and  determine  whether 
it  is  necessary  to  sbII  the  real  estate.4 

It  would  seem,  therefore,  that  no  court  of  common  pleas  in 
the  State  other  than  the  one  in  the  county  wherein  the  guardian 
is  appointed,  has  the  power  to  entertain  a  guardian's  petition 
to  sell  the  real  estate  of  his  ward.5 

In  all  cases  where  there  is  nothing  to  be  determined  but  the 
mere  question  of  a  sale,  the  better  plan  always  is  to  file  the 
petition  in  the  probate  court ;  for  the  reason  that  this  court 
ordinarily  is  always  in  session,  and  there  need  be  no  delays  in 
securing  orders  as  is  the  ease  between  court  terms  of  the  common 
pleas  court ;  but  in  all  actions  to  sell  real  estate  of  the  ward  where 
title  must  be  corrected,  and  where  there  are  equitable  questions 
to  be  heard  and  determined,  the  petition  should  be  filed  in  the 
common  pleas  court. 

Sec.  247.     The  nature  of  such  actions. 

It  has  been  said  concerning  the  nature  and  character  of  the 
actions  in  such  cases  by  Judge  Roekel  in  his  most  excellent, 
work  on  probate  law  and  practice  in  this  State,  that:  "The 
action  provided  for  by  our  statute  is  peculiar  and  is 
no  doubt  to  be  classed  as  a  special  proceeding,  and  not  a  civil 
action  within  the  m  >aning  of  the  code.  Like  the  action  brought 
by  executors  and  administrators  for  the  sale  of  real  estate  with 
which  it  was  formerly  classed,  it  was  under  the  former  laws  of 
our  State  a  proceeding  in  rem  and  purely  ex  parte,  it  is  still  an 
action  i>ir<>n,  but  by  reason  of  a  requirement  that  notice  bo 
given  1<>  ward  and  others  it  lias  assumed  some  of  the  character- 
istics of  an  adversary  proceeding.    But  the  mere  fact  that  notice 

Johns.   Ch.    154;    Morrison  v.    Kins-  administrators,   and  guardians,   and 

tra,  55   .Miss.  71;   Gene  v.  Talmage,  the    assignment    of    dower    in    such 

1   Johns.  (  h.  561  cases   of   Bale." 

sGen'l     ('•.,!<■,      §10493      (R      S.  *  Forseman  v.  Haag,  38  O.  S.  102. 

§525),    which    provides    that    "the  5  Forseman  v.  Haag,  38  O.  S.  102 ; 

probate  court  shall  have  concurrent  hut  see  Gen'l   Code,  §  10955    (R.  S. 

jurisdiction    i:i    the   Bale   of   real   es-  §0290),  as  to  minors  living  out  of 

tate    in    petition    by    the    executors,  this  State  owning  lands  here. 


279  SALE  op  ward's  real  estate  by  guardian.  §248 

is  required  does  not  make  it  adversary.  *  *  *  Suffice  to  say 
here  that  sales  of  this  character  should  only  be  made  when  the 
law  has  bean  strictly  complied  with."  ° 

Sec.  248.     Procedure  incidental  to  such  actions. 

The  manner  of  service  on  such  infants,  the  appointment  of 
guardians  ad  litem  and  answers  of  guardians  ad  litem  for  such 
infants,  service  of  summons  on  adults  and  infants  in  the  county 
and  in  other  counties  of  the  State,  the  procedure  in  case  of  insane 
defendants,  and  appointment  of  trustees  for  such  insane  defend- 
ants and  the  answers  of  such  trustees  for  such  insane  persons, 
service  of  summons  by  publication  on  non-resident  defendants 
whose  places  of  residence  are  known  and  on  those  whose  places 
of  residence  are  not  known,  service  of  copy  of  the  petition  on 
non-residents  of  the  State,  the  affidavits  and  orders  of  the  court 
therein,  the  persons  who  are  to  be  made  parties  to  the  action — 
all  of  these  and  kindred  topics  are  discussed  in  the  first  chapter 
of  this  book,  and  at  that  place  will  be  found  the  references  for 
proper  forms  for  procedure  pertaining  thereto. 

Sec.  249.     In  what  cases  guardian  may  sell  ward's  real  estate. 

The  guardian  of  the  person  and  estate,  or  of  estate  only,  has 
the  power,  or  is  given  the  power,  when  for  the  interest  of  the 
ward,  and  whenever  necessary  for  the  education,  support,  or  pay- 
ment of  just  debts  of  any  minor,  or  for  the  discharge  of  any 
liens  on  the  real  estate  of  such  minor,  or  whenever  the  real  estate 
of  such  minor  is  suffering  unavoidable  waste,  or  a  better  invest- 
ment of  the  value  thereof  can  be  made,  and  the  court  is  satisfied 
that  a  sale  thereof  will  be  for  the  benefit  of  any  minor,  the 
probate  court  by  which  the  guardian  of  the  person  and  estate,  or 
of  the  estate  only,  has  been  appointed,  may,  on  the  application 
of  such  guardian,  order  the  real  estate  of  such  minor,  or  a  part 
thereof,  situate  in  this  State,  to  be  sold.7 

It  has  been  said  by  a  certain  eminent  text  writer  on  the  subject 
of  guardianship,  in  discussing  the  guardian's  powers  in  the  sale 
of  the  ward's  real  estate,  that.  "Where  the  statute  authorizes 
the  court  to  order  the  guardian  to  sell  the  ward's  real  estate  for 
the  payment  of  his  debts,  and  makes  the  proceeds  assets  in  the 

••■See      Complete      Ohio      Probate       Pnrr   v.    CliMsterman,    3    C.  C.   431: 

Practice,  Vol.  2,  Rockel,  1404,  citing       Gen'l   Code,   §  10947    (R.  S.  §6282). 

Woerner      on     Guardianship,      233;  7  Gen'J      Code,      §10945  (P.      S. 

§6280).       ■ 


§§  250,  251  MEKWINE    ON    REAL    ACTIONS.  280 

guardian's  hands,  the  court  must,  before  making  such  an  order, 
ascertain  the  existence  of  such  debts,  and  the  guardian  must 
apply  the  proceeds  of  the  sale  to  the  payment  of  the  debts 
according  to  the  same  priority  as  would  govern  an  executor  or 
administrator  in  applying  personal  assets  to  such  payment."8 

Sec.  250.     Effect  of  sale  of  ward's  real  estate  by  guardian  after 
ward  has  failed  to  select  guardian. 

In  an  early  case  in  this  State  it  was  held,  under  the  statute 
permitting  certain  wards  on  arriving  at  the  age  of  twelve  years  to 
select  their  own  guardian,  that  when  a  guardian  is  appointed 
for  such  ward  under  said  age,  and  said  guardian  continues  as 
such  until  the  ward  arrives  at  the  age  of  twelve  years,  his  guardi- 
anship therel  y  terminal  s,  unless  his  ward  again  selects  him  to 
be  the  guardian.  In  other  w7ords,  mere  holding  over  without  the 
ward  choosing  him  as  guardian,  will  not  operate  to  continue  the 
guardianship.'-' 

And  the  construction  thus  placed  upon  the  statute  makes 
all  sales  of  real  estate  made  by  order  of  the  court  on  petition 
of  guardian  filed  after  such  wards  should  select  such  guardian 
under  the  statute  but  have  not  done  so,  void  and  of  no  effect. 
Purchasers  at  such  sales  do  not  get  title  to  such  real  estate.10 

A  petition  for  the  sale  of  real  estate  presented  by  one  not 
a  legally  appointed  guardian,  and  an  order  of  sale  mad 3 
thereunder  by  a  court  having  jurisdiction,  will  not  operate  to 
give  the  purchaser  at  such  sale  a  valid  title.11 

Sec.  251.     Procedure  when  same  person  is  guardian  for  two  or 
more  wards  who  are  joint  owners  of  the  same  real  estate. 
When  any  person  is  guardian  for  two  or  more  minors  whose 

s  The  American  Law  of  Guardian-  guardian   or   guardians    after    being 

ship  by  Woerner,  235.  notified   by    the  court   to   do   so.   the 

9  Campbell     v.     English,     Wright,  court   shall    appoint   a   guardian    or 

111).     The   statute   at  this  time  was  guardians    for    them    as    aforesaid." 

as  follows:      "That    when   these   mi-  Swan's  Statute,  430. 
nors  aforesaid,  males  above  fourteen  hi  Lessee  of   Perry   v.   Brammard, 

and    females   above    twelve    years    of  11    0.    445.      The   court    said    in    this 

age,   or  when  any   minors  for   whom  case:     "All    of   the    proceedings    sub- 

the  court  have  appointed  a  guardian  sequent    to    and    including   the    peti- 

or  guardians,  -hall  arrive  at  the  re-  (ion    for    the    sale    of    the    lot,    are 

spective  a<_'cs  aforesaid,  such  minors  therefore    void,   and    convey   no   title 

may  severally  choose  a  guardian  or  to    the    defendant." 
guardians,    such    p.s    the    court    will  n  Dengenhart   v.   Cracraft,   36   0. 

approve  and   if   such    minors  do  not  S.    572. 
come  before  the  court  and  choose  a 


281  SALE    OF    WARD'S    REAL    ESTATE    BY    GUARDIAN.  §  252 

rea.  estate  is  owned  hy  them  jointly,  or  in  common,  ine  guard- 
ian may,  in  one  application,  ask  for  the  sale  of  the  interest  of 
all  or  any  number  of  his  wards  in  such  real  estate ;  and  where 
different  persons  are  guardians  of  minors  so  interested  jointly, 
or  in  common,  in  the  same  real  estate,  such  guardians  may 
join  in  one  application;  and  on  the  hearing  in  either  case,  the 
court  may  authorize  the  sale  of  the  interest  of  one  or  more  or 
of  all  such  wards  as  in  its  discretion  it  may  deem  right  and 
proper.12 

Sec.  252.  The  petition  for  such  sale  of  real  estate  and  the  alle- 
gations thereof — Pertinent  description  of  real  estate. 
Such  application  for  the  sale  of  real  estate  of  the  ward  must 
be  by  petition,  which  must  set  forth  specifically:  (a)  The  value 
and  character  of  all  personal  estate  belonging  to  such  ward  as 
has  come  to  the  knowledge   or  possession   of   such   guardian. 

(b)  The  disposition  made  of  such  personal  estate  of  the  ward. 

(c)  The  amount  and  condition  of  such  ward's  personal  estate. 
if  any,  dependent  upon  the  settlement  of  any  decedent  estate 
or  the  execution  of  any  trust,  (d)  The  annual  value  of  the 
real  estate  of  the  ward,  with  a  pertinent  description  of  such 
real  estate,  (e)  The  amount  of  rent  received,  and  the  applica- 
tion thereof.  (f)  The  proposed  manner  of  reinvesting  the 
proceeds  of  the  sale,  if  asked  for  that  purpose,  (g)  Each  item 
of  indebtedness,  or  the  amount  and  character  of  the  lien,  if 
the  sale  is  prayed  for  the  discharge  thereof,  (h)  Th?  age  of 
the  ward,  where  and  with  whom  residing,  (i)  If  there  be  no 
personal  estate  belonging  to  such  ward  in  possession  or  ex- 
pectancy, and  none  so  come  into  the  hands  of  such  guardian, 
and  no  rents  have  been  r?ceived.  this  fact  is  required  to  be 
stated  in  the  petition  ;  if  it  is  desired  that  the  lands  sought  to 
be  sold,  or  any  part  thereof,  shall  be  laid  out  in  town  lots,  that 
fact  must  be  stated  and  the  reasons  therefor,  and  the  manner 
in  which  the  same  is  to  be  laid  out.13 

It  is  to  be  observed  in  this  connection  that  one  of  the  re- 
quirements of  the  statute  is  that  the  petition  must  contain  a 
pertinent  description  of  the  real  estate  of  the  ward.  It  has 
been  held  that  where  the  petition  describes  certain  real  estate, 

izGen'l     Code,     §10945      (R.     S.  is  Gen'l     Code,     §10946      (R.     S. 

§6280).  §6281).     See  Nos.  163  and   19.3  -for 

forms   for    petition. 


§§  253,  254 


MURWINK    ON    REAL    ACTIONS. 


282 


it  will  be  presumed,  where  the  contrary  does  not  appear,  that 
the  rea]  estate  dascribed  in  the  petition  is  all  of  the  ward's 
real  estate.1 ' 

Sec.  253.     Guardian   may   notify   defendants— Parties   to   the 
petition. 

Upon  such  petition  being  filed,  verified  by  the  oath  of  the 
guardian,  the  court  is  required  to  order  the  petitioner  to  givs 
notice  to  Ids  ward,  to  the  husband  or  wife  of  such  ward,  and  to 
.ill  persons  entitled  to  the  next  estate  of  inheritance  in  such 
rea]  estate  who  must  be  defendants  to  the  petition,  of  the 
filing  and  demand  thereof,  and  the  time  when  the  same  is  to 
be  heard,  in  such  manner  as  to  the  court  shall  seem  reasonable 
and  proper;  but  only  the  ward  and  husband  or  wife  of  such 
ward  need  be  so  notified  or  made  defendants,  unless  the  said 
estate  came  to  such  ward  by  devise,  descent  or  deed  of  gift 
from  an  ancestor;  and  such  ward  has  then  living  a  brother  or 
sister  of  the  half-blood  and  of  the  blood  of  such  ancestor  or 
of  their  Legal   representee.1  r> 

The  husband   or  wife  are  made  parties  defendant  so  that 
their  dower  may  be  released. 

Sec.  254.  Hearing  of  petition— Appointment  of  appraisers- 
Survey  into  town  lots. 
A I  the  time  appointed  for  the  hearing  of  the  petition,  and 
being  satisfied  that  the  notice  named  in  th3  last  preceding  par- 
agraph has  been  given,  and  that  such  real  estate  ought  to  be 
sold,  the  law  requires  the  court  to  appoint  three  freeholders 


u  Mauarr  v.  Parish,  26  0.  S.  636. 

"In  :i  proceeding  under  that  stat- 
ute, the  property  of  the  ward  was 
described  in  the  guardian's  petition 
as  lots  Nos.  7:!.  7  1  and  75,  in  East 
[ronton,  and  as  having  come  to  the 
ward  by  descent.  The  appraisement 
and  order  of  sale  in  the  case  were 
of  lots  Nos.  17::.  17 1  and  175,  in 
said  town,  the  latter  being  the  true 
description  of  three  lots  actually 
owned   by    her,   ami   which   came   to 

her  by  descent.  In  an  action  by  the 
ward  to  recover  one  of  these  lots 
(No.     171)     from    a    party    claiming 

title  under  a  sale  made  by  the  guard- 


ian in  pursuance  of  this  order  of 
the  court,  Held:  'that  it  is  to  be 
presumed  that  the  ward  owned  but 
the  three  lots  actually  sold,  and 
that  then'  was  a  mere  mistake  in 
numbering  them  in  the  petition; 
and  that  there  was  enough  in  the 
petition  to  give  the  court  jurisdic 
tion  over  the  subject  matter." 
Mauarr  v.  Parish,  26  0.  S.  636. 

16  See  No.  104  for  order  of  court, 
fixing  time  for  hearing  and  manner 
of  notice,  and  No.  165  for  form  of 
notice.  See  Nos.  166.  1<>7  and  108 
for  return  and  proof  of  service. 


283  SALE   OF    WARD 's   REAL    ESTATE   BY    GUARDIAN.  §  255 

of  the  county  in  which  the  real  estate  of  the  ward,  is  situated, 
who  are  not  of  kin  to  the  petitioner,  to  appraise  said  real  es- 
tate ;  and  if  such  petition  seeks  to  have  the  land  or  any  part 
thereof  laid  out  into  town  lots,  and  the  court  finds  that  it  will 
be  to  the  advantage  of  the  ward  to  have  the  same  done,  the 
court  must  also  authorize  the  survey  and  platting  of  the  land 
for  that  purpose.1" 

Sec.  255.  Should  guardian  ad  litem  be  appointed  for  infant 
defendants. 
In  case  of  the  sale  of  real  estate  by  administrators  and  ex- 
ecutors to  pay  debts,  and  in  partition  and  other  actions,  guard- 
ians ad  litem  are  required  to  be  appointed  and  to  file  answers 
and  to  defend  for  their  wards;  but  the  statute  seems  to  have 
made  no  provision  for  such  guardians  ad  litem  when  the  ward's 
real  estate  is  sought  to  be  sold  in  a  proper  action.  It  would  be 
a  prudent  and  safe  course  to  adopt  in  such  proceedings  to 
have  the  court  appoint  guardians  ad  litem  and  require  them  to 
defend  for  their  wards.17 

Sec.  256.     Oath  of  appraisers. 

The  appraisers  must  be  sworn  to  truly  and  impartially  ap- 
praise the  real  estate  at  the  fair  cash  value  thereof,  and  such 
oath  must  be  endorsed  on  the  certificate  of  their  appointment 
or  order  of  sale  issued  by  the  court.1  * 

Sec.  257.  Before  sale  of  real  estate  the  guardian  must  give  an 
additional  bond. 
Upon  the  appraisement  of  said  real  estate  being  filed,  signed 
by  said  appraisers,  the  court  must  require  the  guardian  to 
execute  a  bond  with  sufficient  freehold  securities,  at  least  two 
in  number  in  addition  to  the  principal,  payable  to  the  State 
in  double  the  appraised  value  of  such  real  estate,  with  condi- 
tion for  the  faithful  discharge  of  his  duties,  and  the  faithful 
payment  and  accounting  of  all  moneys  arising  from  sueh  sales 
according  to  law.  which  bond  shall  be  additional  to  that  given 

is  Gen"      Code.      §10348      ( R.     S.  also    see   Roberts   v.   Page,   61    0.   S. 

§6283).      See    No.    163    et    seq.   for  96. 
forms.  isGen'l     Code,     §10949      (R.     S. 

it  See    S§  38    to    44    inclusive,    for  §6284).       See     No.     172     for     oath 

a  general  discussion  of  this  subject;  of   appraisers. 


§§258,259  MERWINE    ON    REAL    ACTIONS.  284 

by  the  guardian  according  to  his  appointment ;  and  no  court 
has  the  power  to  waive  the  giving  of  this  additional  bond,  or 
jurisdiction  lo  order  the  side  of  such  real  estate  until  this 
bond  shall  have  been  given.11' 

This  statutory  provision  as  to  the  bond  required  by  a  guard- 
ian in  the  sale  of  real  estate,  must  be  complied  with.  It  will 
not  now  do  to  have  the  giving  of  this  bond  dispensed  wilh  by 
order  of  the  court,  reciting  as  the  reason  for  such  omission 
that  the  general  bond  already  given  is  sufficient.  Without  the 
giving  of  the  bond  now  required  by  the  statute,  the  court  is 
without  the  power  to  authorize  a  sale  of  the  real  estate.20 

Sec.  258.  Surety  and  guaranty  bonding  companies  are  author- 
ized to  execute  such  bond — Cost  of  same  may  be  paid  out 
of  estate. 

It  is  provided  that  such  guardian  as  principal  and  a  bonding 
surety  <>r  guaranty  company  that  has  met  the  statutory  re- 
quirements of  this  State  to  authorize  it  to  do  business  here  as 
surety,  may  execute  such  bond,  and  the  guardian  may  pay  for 
the  reasonable  expense  thereof  out  of  his  ward's  ^state.21 

Sec.  259.  The  order  of  sale — Terms  of  sale — The  notice  of  sale 
— Private  sale — Amount  of  sale. 

Upon  such  bond  being  filed  and  approved  by  the  court,  it 
is  required  to  order  a  sale  of  such  real  estate  at  auction,  for 
not  less  than  two-thirds  of  the  appraised  value  thereof,  pro- 
viding in  the  order  for  reasonable  notice  and  the  place  of  such 
s;de  in  the  county  in  which  said  real  estate  shall  lie;  and  the 
credit  to  be  given  for  the  payment  of  the  purchase  money,  and 
the  deferred  payments  of  the  purchase  money  must  be  secured 
by  ;i  mortgage  executed  by  the  purchaser  of  the  real  estate 
sold,  and  they  must  hear  interest  at  the  legal  rate  per  annum 
from  the  date  of  sale,  payable  annually;  provided,  however, 
that  if  it  is  made  to  appeal-  to  the  probate  court  that  it  will 
he  more  to  Ilie  interest   of  the  ward  to  sell  such   real   estate  at 

i»Gen'l     Code,     §10950      (R.     S.  arr  v.  Parish,  26  O.  S.  636;  Arrow- 

§(i28f)).      See     17.-{     for    bond     and  smith   v.   Earmoning.    ''2  0.  S.  254; 

court's  approval  of  same.  McWhinney    and    Ryan    v.    Swisher, 

20  See  also  Probate  Law  and  l'rac-  58  <  >.  S.  378. 

ti<-<.    Rockel,    §1424;    see    also    the  "Gen'l     Code,      §9571      (R.     S. 

following  ca-c-,  decided   under  vari-  §  3641c). 
oils   statutes  on    this   subject.      Mau- 


285  SALE  of  ward's  real  estate  by  guardian.  §  260 

private  sale,  it  may  authorize  such  guardian  to  sell  the  same 
at  private  sale,  either  in  whole  or  in  parcels  and  upon  such 
terms  of  payment  as  may  be  prescribed  by  the  court,  and  in 
no  case  shall  such  real  estate  be  sold  at  private  sale  for  less 
than  the  appraised  value  thereof;  and  if  the  petition  contains 
an  application  for  the  laying  out  into  town  lots  of  the  land  to 
be  sold,  or  any  part  thereof,  and  the  court  approve  the  survey 
and  plat  made  for  that  purpose,  the  court  must  also  author- 
ize the  guardian  on  behalf  of  his  ward,  to  sign,  seal  and  ac- 
knowledge the  plat  in  that  behalf  for  record  according  to 
law.22 

Sec.  260.     Report  of  sale,  confirmation  and  deed. 

Upon  the  return  of  the  order  of  sale  issued  by  the  court,  such 
guardian  is  required  to  make  report  of  the  sale  by  him  made; 
whereupon  the  court,  on  being  satisfied  that  such  sale  was 
fairly  and  legally  made,  must  confirm  the  same,  and  order  the 
petitioner  to  execute  a  deed  of  conveyance  for  the  real  estate 
so  sold,  upon  the  purchaser  securing  the  deferred  payments 
of  the  purchase  money  in  the  manner  described  in  the  last 
paragraph.23 

22Gen'l     Code,     §10951      ( R.     S.  23  Gen'l     Code,     §10952      ( R.     S. 

§6286).  SeeJSTo.  176  and  following  §6287).  See  No.  177  for  form  for 
for  forms.  confirmation    of    sale,    and    No.    179 

for  form  for  guardian's  deed. 


FORMS. 


PROCEEDINGS  OF  GUARDIANS  OF  AN  INSANE  PERSON 
—PUBLIC  SALE  OF  REAL  ESTATE. 


FORMS. 

163.  Petition    by    guardian    of    an 

insane  person. 

164.  Order  of  court  fixing  time  for 

hearing  and  manner  of  no- 
tice. 

165.  Notice   to    defendants. 

166.  Return    of    service   of   notice. 

167.  Order  for  no+:ce  by  guardian. 

168.  Guardian's    return    of    notice 

and    affidavit    in    proof    of 
notice. 

169.  Waiver  of  summons  and  entry 

of  appearance. 

170.  Answer  disclaiming  any  inter- 

est in   real  estate. 

171.  Entry    ordering    appraisement 

and  appointing  appraisers. 


FORMS. 

172.  Order  of  appraisement   issued 

to  guardian  —  Guardian's 
return  and  appraisement 
and  oath  of  appraisers. 

173.  Court's  approval   of  appraise- 

ment   and    order    for    bond. 

174.  Court's  approval  of  bond  and 

order  of   sale. 

175.  Proof  of  publication  and  form 

of  legal  notice. 

176.  Order  of  sale  to  guardian  and 

guardian's    return    of    sale. 

177.  Entry  confirming  sale  and  or- 

dering deed. 

178.  Guardian's     additional      bond 

for  sale  of  real  estate. 

179.  Guardian's    deed    in     sale    of 

real   estate. 


No.  163.     The  petition  of  guardian  of  an  insane  person  to  sell 
his  ward's  real  estate. 

County,  Ohio. 


No. 


In   the  Probate  Court,  

W.   B.   P.,   as  guardian   of 

G.  W.   W.,  a  lunatic.  Plaintiff, 

vs. 

G.   W.,   C,   E.   M.,   J.   R.   H..   A.   W.  K., 
administrator   of    the   estate    of 
L.   L.,  deceased,    F.   A.    D.,   E.   D.    S., 
K.  D.  and  M.  B.,  sisters  of  said 
G.   W.   W.,   M.   W.,  G.   W..   F.   W.,  E.  W., 
C.  W.  and  C.  W.,  children  of  C.  W., 
deceased,  a  brother  of  G.  W.  W., 
W.    W..  C.  W.,  G.  W.,  Mrs.   M.  S., 
Mrs.   C.   B.,   Mrs.   S.   W.   G.,  only 
children   of   G.   M.   W.,   deceased,   a 
brother  of  G.   W.   VY..  Defendants. 

Petition. 

Your  petitioner,  W.  B.  P.,  represents  that  he  is  the  duly  appointed, 
qualified,   and    now   acting   guar*  ian   of  G.    W.    W.,   a    lunatic,   now   of 

286 


287  FORMS. 

the  age  of  about  years,  and  now  an    inmate   of   the  

State   Hospital,   at   Ohio,   and   that    the    said   G.    W.    W.    has 

been  an  inmate  thereof  for  more  than  ten  years,  and  is  incurably 
insane.      Your    petitioner    was    appointed    as    such    guardian    by    the 

Probate  Court  of  County,  Ohio,  to  succeed  F.  A.  D.,  former 

guardian,  resigned;  that  it  is  necessary  to  sell  the  real  estate  for  the 
reason  that  the  same  is  required  for  the  payment  of  taxes,  assess- 
ments, and  the  payment  of  the  just  debts  of  said  ward;  that  the 
personal  property  of  all  kinds  coming  into  the  possession  of  your 
petitioner  belonging  to  said  ward  will  not  exceed  the  sum  of  about 
$ ,  and  that  there  is  no  other  personal  estate  of  any  kind  be- 
longing to  said  ward,  to  the  knowledge  of  your  petitioner,  of  any 
value. 

Said  personal   property  of   said   ward   consists   of  ■ ,   and   is 

estimated   to  be  worth  about  $ . 

Your    petitioner    says    that    he    has    a    promissory    note    signed    by 

J.   E.   C,    upon   which   there   is   about   $ due   with   interest,    but 

that  the  same  has  no  present  value;  that  there  is  no  personal  estate 
of  said  ward  dependent  upon  the  settlement  of  decedent's  estate, 
nor  the  execution  of  any  trust,  nor  any  expectancy;  that  said  ward 
is    the    owner    in    fee    simple    of   the    following   described    real    estate, 

situated  in  the  City  of  ,  County,  Ohio,  and  described  as 

follows,  to-wit:      (Here  describe  real  estate). 

Your    petitioner    has    only    received    the    sum    of    $ in    rents 

from  all  the  real  estate  of  his   ward  since  his  appointment,  and  has  % 

expended   thereof   the   sum    of   $ in    court   costs,   and    insurance 

$ ,  leaving  a  balance  of  $ in  the  hands  of  your  petitioner. 

The    taxes    for    the    last    half    of    19 ,    due    ,    1.9 , 

amounting  to    $ ,   are   unpaid. 

The  second  and  third   described  parcels   of  real  estate  are  vacant, 
and   produce   no   income.     The   first  and   fourth   parcels   are   improved 

and  produce,  in  the  order  named,  —  dollars  ($ )  per  month 

and    dollars     ($ )     per    month.      The    income    of    said 

property  is  insufficient  to  pay  the  insurance,  repairs,  taxes  and 
assessments,  the  cost  of  administration,  and  the  debts  of  said  estate; 

that  the  first  parcel  is  encumbered  by  a  mortgage  for  $ ,  dated 

on  the  day   of  ,   IS — — ,   for  years  at  

per  cent.      ( r/( )    executed  and  delivered  by  G.   W.  W.,  then  sane, 

to  C.  E.  M.;  that  the  interest  on  said  note  has  been  paid  except 
about  a  year  and  a  half,  which  is  now  due.  Said  note  and  mortgage, 
as    your    petitioner    is    informed    and    states,    is    now  'owned    by    one 

J.  R.    H,   of  ,   Ohio,   who   is   now   demanding  payment  of  the 

principal    and    interest. 

Your  petitioner  states  that   the  second   parcel   described   is  encum- 
bered by  an  uncancelled  mortgage  for  dollars,  due  the  estare 

of  L.  L. ;  and  that  he  is  advised  that  this  note  and  mortgage  has 
been  paid  and  discharged,  but  that  the  same  is  uncancelled  of  record. 

Your  petitioner   states  that  parcels  numbered  one,   three   and   four 
are    encumbered    by    a    tax    title    due    to    E.    D.    S.,    amounting    to 


KEEBWTNE   ON    REAL    ACTIONS.  288 

$ with  interest  as  hereinafter  stated.     During  the  year  1S- 


and    prior   to   the    resignation    of    F.    A.    D..   as   former  guardian,    this 

claim  was  settled  by  him  without  penalty,  and  upon  a  basis  of  

per  cent,  interest  upon  the  several  amounts  paid  upon  the  tax  title 
from  the  various  dates  of  payment.  The  tax  titles  represented  by 
this  claim,  with  interest,  are  still  outstanding  upon  the  said  several 
parcels  of  land   described. 

Your  petitioner  states  that  there  is  an  outstanding  tax  title  upon 

the    second    parcel    of    land    sold    to    one    .    but    which    was 

taken  up  and  assigned  to  and  is  now  owned  by  the  said  F.  R. 
D..  and  that  the  same  is  outstanding  and  uncancelled.  Your  petitioner 
is  informed  and  so  states,  that  the  amount  of  this  tax  title  has  been 
included  in  the  balance  found  due  the  said  P.  A.  D..  former  guardian, 
in  the  settlement  of  his  final  account  as  such  guardian,  and  that 
including  said  tax  title,  there  is  a  claim  of  a  finding  of  the  Probate 
Court    in    favor    of    the    said    F.    A.    D.    as    former    guardian,    in    the 

sum    of    $ ,    with    interest    thereon    from    the    day    of 

.  19 . 

Your  petitioner  states  that  the  said  G.  W.  W.  was  never  married 
and  that  said  estate  came  to  his  ward  by  devise,  descent,  or  deed 
of  gift  from  an  ancestor,  and  that  the  following  persons  now  living 
of  the  blood  of  such  ancestor  are.  namely:  M.  B..  K.  D.,  sisters; 
X.  W.,  G.  W.,  F.  \V..  E.  W.,  C.  W  and  C  W..  only  children  of  a  de- 
ceased  brother  of  said   ward,   namely.   C.   W. 

Your  petitioner  therefore  prays  that  the  said  G.  W.  W.,  C.  E.  M.. 
'  J.  R.  H.,  A.  K..  administrator  of  the  estate  of  L.  L..  deceased,  F. 
A.  D.,  E.  D.  S.,  K.  D.  and  M.  B.,  sisters  of  said  G.  W.  W.,  M.  W.. 
G.  W.,  F.  W.,  E.  W.,  C.  W.  and  C.  W..  only  children  of  C.  W.,  deceased, 
a  brother  of  G.  W.  W.,  W.  W.,  C.  W.,  G.  W.,  Mrs.  M.  S..  Mrs. 
C.  B..  Mrs.  S.  W.  G.,  only  children  of  G.  M.  W.,  deceased,  a  brother 
of  G.  W.  W.,  may  be  made  defendants  to  this  petition,  and  that  the 
rights  and  liens  of  said  lienholders  may  be  adjusted,  and  that  your 
petitioner  may  be  ordered  to  sell  such  part  of  said  described  real 
estate  as  may  be  necessary  to  pay  the  debts,  costs  and  expenses, 
and  for  such  other  orders  as  may  be  proper  in  the  premises 

Attorneys    for    Plaintiff. 
Petition    should    be    verified    as    in    other    actions. 

No.  164.     Entry  fixing  time  for  hearing  and  manner  of  notice. 

In  the  Probate  Coubt,  County,  Ohio. 

Same  caption  aa   in   petition.  I 

This  day  W.  B.  P.,  guardian  of  G.  W.  W.,  appeared  in  open  court 
and  filed  his  petition  duly  verified,  asking  for  the  sale  of  real  estate 
therein  described  belonging  to  his  said  ward.  It  is  ordered  that  the 
time  of  hearing  of  said  petition  be  and  it  hereby  is  fixed  for  the 
day  of  .  19 ,   at  a.   m. 


289  POl : 

It  is  further  ordered  that  caii  guardian  cause  notice  thereof  and 
of    the    filing   and    demand    of    said    petition    to    be   given    to    said    G. 

W.,  C.  E.  M.,  J.  R.  H.,  A.  W.  K..  administrator  of  the  estate  of 
L.  L.,  deceased.  F.  A.  D.,  E.  D.  S..  K.  D..  M.  E..  M.  W., 
G.  W.,   F.   W..  E.  W.,  C.   W..  .   W.   W.,  C.   W.,  G.   V.'..   Mrs.   M.   S., 

Mrs.  C.  B..  Mrs.  S.  W.  G..  defendants  in  writing,  to  be  served  upon 
them  personally  by  leaving  copies  thereof  at  the  usual  place  of  resi- 
dence   of   each    of    those    who    cannot    be    served    personally,    at    least 

days  before  said  day  of  hearing,  and  this  cause  is  continued 

for  service. 

No.  165.     Notice  to  defendants. 

The  State  cf  Ohio,  County,  ss. : 

To  G.  W.  W.,  M.  B.  and  E.  D..  et  al: 

You  are  hereby  notified,  that  on  the  day  of  A.  D. 

19 ,    the    undersigned   as   guardian,   filed    in    the   Probate    Court   of 

County,    Ohio,    a    petition,    the   object    and    prayer    of   which 

is   to   procure  said  court   to  order  the   sale  of  the   real  estate  of  the 

said  G.   W.   W.,   situated    in   the   County   o:   .   in   the   State   of 

Ohio,  and  in   the   City  of  .   and   described  as   follows,   to-wit: 

(Here  describe  real  estat- 

Said   petition   will  be   for  hearing  by   said   court,  on  the  

day  of  .  A.  D.  19 .  at  o'clock  a.  m..  at  which  time 

an  order  will  be  asked,  as  prayed  for  in  said  petition. 

Dated  this day  of  A.  D.  19 .      W.  B.   P.. 

Guardian   of   G.    W.    W. 
No.  166.     Return  of  service  of  notice. 

The  State  of  Ohio,  County,  ss.: 

Received   this    writ   .    19 ,   at   oclock   a.    m..   and 

on  the  day  of  .  19 ,  I  served  the  same  by  deli'. 

ing  a  true  copy  thereof  personally  to  the  within  named  G.   W.  W. 

Also  on  the  same  day  I  served  the  same  by  leaving  a  true  and 
duly  certified  copy  of  this  writ  with  all  the  endorsements  thereon  at 
the  usual  place  of  residence  of  the  within  named  defendant.  M.  B. 

Also  on   the  day  of  A.    D.   19 .    I   served  the 

same  by  leaving  a  true  and  duly  certified  copy  of  this  writ  with 
all  the  endorsements  thereon  at  the  usual  place  of  residence  of  the 
within  named  K.  D.  G.  J.  K.. 

Sheriff. 

No.  167.     Order  for  notice  by  guardian. 

Pbobatk  Court.  Court*,   Ohio. 

(Same  caption  as  in  petit: 

To  W.  B.  P..  Guardian: 

You  are  hereby  ordered  to  give  notice  to  G.  W.  \Y.,  your  ward, 
and  C.  E.  X..  J    R.  H.,  A.  W.  K.,  administrator  of  the  estate  of  L.  L., 


MEKWTNE   ON    REAL    ACTIONS.  290 

deceased,  F.  A.  D.,  E.  D.  S.(  K.  D.,  M.  B.,  M.  W.,  G.  W.,  F.  W., 
E.  W.,  C.  W.,  C.  W.,  W.  W.,  C.  W.,  G.  W.,  Mrs.  M.  S.,  Mrs. 
C.  B.,  Mrs.  S.  W.  G.,  defendants  to  your  petition,  this  day  filed  in 
said  Probate  Court,  for  the  sale  of  the  following  described  real  estate 
of  said  ward,  of  the  filing  and  demand    of  said  petition  and  the  time 

when  the  same  will  be  heard,  such  notice  to  be  given  at  least  

days  before  the   time  hereafter   named  for  said   hearing. 

The  real  estate  so  asked  to  be  sold  is  described  as  follows,  to-wit: 
(Here  insert  description  of  real  estate). 

Said  petition  will  be  for  hearing  before  said  Probate  Court,  at  the 

office  of  the  judge  of  said  court,  in  ,  Ohio,  on  ,   the 

day  of  ,  A.   D.  19 ,  at  o'clock  m. 

You  will  make  due  service  and  return  of  this  order. 

Witness  my  hand  and  the  seal  of  said  court  at ,  this 

day  of  ,  A.  D.  19 .  S.  L.  B., 

Judge  of  Probate  Court. 

No.  168.     Guardian's  return  of  notice  and  affidavit  in  proof  of 
service. 

Received   this  order   the  day   of  ,   A.   D.    19 , 

and  thereupon  served  the  said  ,  ,  ,  ,  , 


,   each   personally,  by  copy,  with  the  notice  therein   required   to 

be  given,    which   notice   so   served   with    proof  of   service   is    herewith 
returned,   marked  "A,"   and  made  a   part  of  this   report. 

W.  B.  P., 
Guardian. 
The  State  of  Ohio,  County,  ss. : 

T,   W.   B.   P.,   being  duly   sworn,  say,   that  on   the  day   of 

,  19 ,  I  served  this  writ  by  delivering  a  true  copy  thereof 


personally   to  the   following  named   persons,    to-wit:      C.   E.   M.,   F.  A. 
IX,    E.    D.    S.,    M.    W.,    G.    W.,    F.    W.,    E.    W.,    C.    W.,    C.    W.,    W.    W„ 

C.  W.,  G.  W.,  Mrs.  M.  S.,  Mrs.  C.  B.,  and  Mrs.   S.  W.  G. 

W.  B.  P. 

Sworn  to  before  me  and  signed  in  my  presence,  this  day 

of ,  19 .  S.  L.  B., 

Probate   Judge. 

No.  169.     Waiver  of  summons  and  entry  of  appearance. 

The  State  of  Ohio,  County,  ss. 

To  (J.    W.    W.,   et  al: 

You  are  hereby  notified,   that   on  the  day  of  A. 

D.  19 ,   the   undersigned    as   guardian,    filed    in    the    Probate   Court. 

of  County,  Ohio,   a   petition,   the  object   and   prayer  of   which 

is    to   procure   said    court    to   order   the   sale   of   the   real    estate   of   the 
said   G.   W.    W.,   situated   in   the   County   of  ,   in    the    State   of 


291  FORMS. 

Ohio,  and    in   the  City  of  ,   and  described  as   follows,  to-wit: 

(Here   insert   description   of   real  estate). 

Said   petition   will   be   for  hearing  by   said   court,   on   the  

day  of  ,  A.  D.  19 ,  at  o'clock  a.  m.,  at  which  time 

an  order  will  be  asked,  as  prayed  for  in  said  petition. 

Dated  this  day  of  ,  A.   D.   19 . 

W.  B.  P., 
Guardian  of  G.  W.  W. 
Received  copy  of  the  above  notice. 

C.   B, 
W.   H.  W„ 
S.  W.  G., 
G.  G.  W., 
M.   E.   S., 
C.   M.   W. 

In  the  Probate  Court,  County,   Ohio. 

(Same  caption  as  in  petition.) 

Waiver    of    Summons    and    Entry    of    Appearance. 

We,  the  undersigned,  defendants  herein,  hereby  waive  the  issuing 
and  service  of  summons  against  us  in  the  above  entitled  cause, 
and    hereby    enter    our    appearance   as    defendants    herein. 

M.    W., 

E.  W., 

C.    K.   W., 
G.    W., 
C.    A.   W., 

F.  W., 

E.  D.  S., 

F.  D., 

C.    E.    M., 
J.  R.  H. 

No.  170.     Answer  disclaiming  any  interest  in  real  estate. 

In  the  Probate  Court,  County,  Ohio. 

(Same  caption  as  in  petition.) 

Now  comes  the  defendant,  A.  W.  K.,  formerly  the  administrator 
of    the    estate    of    L.    L.,    deceased,    and    for   his    answer   herein    says: 

That    his    and    final    account    as    such    administrator    was 

filed    in    the    Probate    Court    of    County,    Ohio,    on    , 

19 ,    and    was     by    said    court    confirmed    on    ,    19 ,  the 

said  estate  settled,  and  the  said  administrator  and  his  bondsmen  dis- 
charged  by  order  of  said  court. 

This  defendant,  if  such  he  properly  be,  in  view  of  the  fact 
that  his  said  representative  capacity  and  functions  have  long  since 
ceased   and   terminated   as  aforesaid,   nevertheless    says  that   he   fully 


KERWINE   ON    HEAL   ACTIONS.  292 

conferred  with  all  those  interested  in  the  estate  of  said  L.  L..,  de- 
ceased, and  upon  full  consideration  believes  that  they,  as  such  heirs, 
as  well  as  said  estate,  have  no  claim  nor  interest  in  or  to  the 
property  in  the  petition  mentioned  and  described,  nor  in  the  subject 
matter  of  this  action;  that  they  believe  that  the  mortgage  in 
the  petition  set  forth  as  being  uncancelled  of  record,  being  a  mortgage 
executed  in  favor  of  their  said  relative  L.  L.,  as  in  the  petition  set 
forth,  has,  as  a  matter  of  fact,  been  satisfied,  and  the  debt  secured 
thereby  paid. 

Wherefore,  this  defendant  in  his  said  supposed  capacity  as  ad- 
ministrator of  the  estate  of  L.  L.,  deceased,  prays  that  this  action 
as  to  him  in  such  supposed  representative  capacity  and  in  every 
respect  and  as  to  the  heirs  of  said  L.  L.,  deceased,  may  be  dismissed 
with  costs.  A.  W.  K., 

Attorney  for  said  Defendant. 

Duly  verified. 

No.  171.     Entry   ordering1    appraisement   and    appointing   ap- 
praisers. 

This  cause  coming  on  to  be  heard  upon  the  petition  of  W.  B. 
P.,  guardian  of  G.  W.  W.,  a  lunatic,  for  the  sale  of  real  estate 
described  therein,  and  it  appearing  to  the  court  that  due  and  proper 
notice  according  to  law  and  the  order  of  this  court  has  been  giveji 
to  the  said  lunatic  and  to  the  defendants,  and  that,  as  alleged  in 
said  petition,  it  is  necessary  to  sell  said  real  estate  of  said  lunatic 
for  the  purposes  of  paying  his  debts;  it  is  therefore  ordered  by 
the  court  that  said  property  described  in  the  petition  be  appraised 
by  J.  G.  P.,  A.  W.  D.  and  T.  E.  H.,  three  judicious  freeholders  of 
the  vicinity,  and  not  of  kin  to  the  petitioner  or  of  the  defendants, 
who  are  hereby  appointed  to  appraise  said  lands  at  their  fair  cash 
value   in   money. 

It  is  therefore  ordered  that  said  appraisers  be  sworn,  as  accord- 
ing to  law,  and  afterward,  upon  actual  view,  to  perform  the  duties 
required  of  them,  and  make  return  of  their  proceedings  in  writing 
to   this   court   without   delay. 

No.  172.     Order  of  appraisement  to  the  guardian — Guardian's 
return  and  oath  of  appraisers — Also  appraisement. 

I\   Peobate  Court. 

The    State    of   Ohio,    County,    ss.: 

To   W.   B.   P.,  as  Guardian  of  G.   W.   W.,  a  lunatic.  Greeting: 

In  obedience  to  an  order  and  decree  of  the  Probate  Court  within 
and  for  said  county  made  this  day  in  a  certain  cause  wherein 
you  as  the  guardian  of  G.  W.  W.,  a  lunatic,  are  complainant,  and 
G.  W.  W.,  et  al,  are  defendants,  a  certified  copy  of  which  is  hereto 
attached,  you  are  commanded  that  by  the  oaths  of  J.  G.  P.,  A.  W.  D. 


293  FORMS. 

and  T.  E.  H.,  judicious  and  disinterested  men  of  the  vicinity,  and 
upon  actual  view  of  the  premises,  you  cause  a  just  valuation  and 
appraisement  to  be  made,  according  to  law,  of  the  following  described 
premises,  to-wit:      (Here  insert  description  of  real  estate). 

And  re  it  Pubtheb  Ordered.  That  you  make  return  of  your  pro- 
ceedings  herein   forthwith   upon   the   execution  of  this  order. 

Witness    my    signature,    and    the    seal    of    said    Probate    Court    at 

— ,   this   day   of  ,   A.    D.    19 . 

S.  L.  B., 
Probate  Judge. 

To  the  Probate  Court  of  County,  Ohio: 

In  obedience  to  the  foregoing  order,  I  have  caused  an  appraisement 
to  be  made  of  the  premises  therein  described,  as  will  more  fully 
appear  by   the   proceedings   of  the  appraisers,  hereto   annexed. 

,  19 .  W.  B.  P., 

Guardian  of  G.  W.  W. 

The  State  of  Ohio,  County,  ss.: 

On  the  day  of ,  A.  D.  19 ,  before  me  personally 

appeared  J.  G.  P.,  A.  W.  D.  and  T.  E.  H.  within  named,  and  made 
solemn  oath  that  they  would,  upon  actual  view,  honestly  and  im- 
partially appraise  the  within  described  real  estate  at  its  fair  cash 
value,   in   pursuance  of  the  foregoing  order. 

J.  G.  P., 
A.  W.  D., 
T.  E.  H. 

Appraisers. 


Sworn  to  and  subscribed  before  me,  this  day  of  

19 .  W.  P.  Jr.. 

Notary  Public  in  and  for County,  Ohio. 


No.   173.     Court's  approval  of   appraisement  and   order  for 
bond. 

In  the  Probate  Court,  County,  Ohio 

(Same  caption  as  in  petition.) 

This  day  came  the  plaintiff  by  his  attorneys,  and  produced  to 
the  court  the  report  of  the  appraisement  herein  made  by  J.  G.  P., 
A.  W.  D.  and  T.  E.  H.,  in  pursuance  of  a  former  order  of  this  court; 
and  it  appearing  upon  examination  that  said  report  is  in  all  respects 
regular  and  correct,  it  is  ordered  that  the  same  be,  and  it  hereby  is 
approved   and   confirmed. 

It  is  further  ordered  that  said  W.  B.  P.  execute  within  three 
day   to    the    State    of    Ohio,    a   bond    with    sufficient    freehold    sureties 

tc  be  approved  by  the  court,  in  the  sum  of  dollars  ($ ), 

conditioned  according  to  law. 


MERWINE   ON    REAL    ACTIONS.  294' 

No.  174.     Court's  approval  of  guardian's  bond  and  order  of 
sale. 

I.\   the  Probate  Coukt,  County,  Ohio. 

(Same  caption  as  in  petition.) 

This  day  this  cause  came  on  further  to  be  heard,  and  it  appear- 
ing to  the  court  that  the  said  W.  B.  P.,  guardian,  etc.,  the  plaintiff 
above  named,   has   given  bond   as  heretofore   ordered,    in   the   sum   of 

dollars    ($ ),  with  M.  S.  P.  and  W.  P.,  Jr.,  as  sureties, 

it  is  ordered  that  said  bond  be,  and  it  hereby  is,  approved. 

It  is  therefore  further  ordered  that  said  W.  B.  P.  as  such  guardian, 
proceed  according  to  law  to  sell  the  first  and  second  parcels  of 
land  described  in  said  petition  at  public  auction,  at  the  door  of 
the  court  house,  for  not  less  than  two-thirds  (2-3)  of  the  appraised 
value  thereof,  and  on  the  following  terms,  to-wit:  One-third  (1-3) 
cash  in  hand  on  day  of  sale,  one-third  (1-3)  in  one  year,  and  one- 
third  (1-3)  in  two  years  from  the  day  of  sale;  deferred  payments 
to  be  secured  by  mortgage  on  the  premises  sold,  and  to  bear  interest 
from  the  day  of  sale,  payable  annually. 

It   is   further   ordered   that   said  W.    B.    P.   as   such   guardian   give 

notice    weeks    consecutively    of    the    terms    and    time    and 

place  of  sale  prior  thereto  in  some  newspaper  printed  and  of  general 

circulation  in —  County,  Ohio,  where  said  real  estate  is  situated. 

And   he   is  hereby  ordered  to  make  return  to  this  court   immediately 
after  such  sale  is  made. 

No.  175.     Proof  of  publication  and  form  of  legal  notice. 

State  of  Ohio,  County,  ss.: 

J.    H.    B.,    foreman    of   The    ,   a    newspaper    published    and 

printed  in  ,  County,  Ohio,   personally   appeared   and 

made    oath    that    the    attached    printed    advertisement    was    published 

four  consecutive  weeks  in  said  newspaper,  i.  e.,  on  ,  19 ; 

and  that  said  newspaper  is  of  general  circulation  in  said  county. 

J.   H.   B. 

Subscribed   and   sworn   to   this   day    of   ,   19 . 

P.  M.  S., 
Notary  Public  in  and  for  County. 

In  the  Probate  Court,  County,  Ohio. 

(Same  caption  as  in  petition.) 

In  pursuance  of  an  order  of  the  Probate  Court  of  County, 

Ohio,   by  me  directed,  I   will   offer   for  sale   at  public   auction    at   the 

door  of  the  court  house    in  the  City  of  ,   Ohio,   on  , 

19 ,    at   o'clock,   m.,    the    following   described    property 

belonging  to  G.  W.  W.,  a  lunatic,  to-wit:  (Here  insert  description 
of  real  estate). 

Terms  of  sale:     One-third  cash,  one-third  in  one,  and  one-third  in 


295  FORMS. 

two    years,    secured    by    mortgage    at    six    per    cent,    interest,    payable 
annually.  '  W.  B.  P., 

Guardian  of  G.  W.  W.,  by  P.  &  P.,  Attorneys. 

No.  176.     Order  Af  sale  to  guardian — Guardian's  return  of  sale. 

In  Probate  Court. 

The  State  of  Ohio,  County,  ss.: 

To  W.  B.  P.  Guardian  of  the  estate  of  G.  W.  W.,  a  lunatic,  Greeting: 

In  obedience  to  an  order  and  decree  of  the  Probate  Court  within 
and  for  said  county,  made  this  day,  in  a  certain  cause  wherein 
you,  as  the  guardian  of  the  estate  of  G.  W.  W.,  are  complainant, 
and  G.  W.  W.,  et  al,  are  defendants,  a  true  copy  of  which  order 
and  decree  is  hereto  attached,  you  are  commanded  to  proceed,  accord- 
ing to  law,  to  sell  the  following  described  premises,  after  giving 
four  weeks'  notice  by  publication  in  some  newspaper  printed  and 
of   general    circulation    in    said    county,   to-wit:      Situated    in   the    city 

of  — ■ — -,  County,  Ohio,  and  described  as  follows,  to-wit: 

(Here   insert  description  of  real   estate). 

Said  sale  to  be  by  public  auction  at  the  door  of  the  court  house 
for  not  less  than  two-thirds  the  appraised  value  thereof  and  upon 
the  following  terms:  One-third  cash  in  hand  on  day  of  sale,  one- 
third  in  one  year  and  one-third  in  two  years  from  day  of  pale,  the 
deferred  payments  to  be  secured  by  mortgage  on  the  premises,  and 
to  bear  interest  from  the  day  of  sale,  payable  annually. 

You  will  make  return  of  your  proceedings  immediately  after 
executing  this  order. 

Witness    my   hand    and    the    seal    of    the    court   at    ,    Ohio, 

this  day  of   ,   19 .  S.  L.  B., 

Probate  Judge. 
Guardian's  Return. 

In  obedience  to  the  within  order,  I  duly  advertised  the  real 
estate  therein  described  for  sale,  for  four  consecutive  weeks  before 
the  day  of  sale  in  the  ,  a  newspaper  published  and  of  gen- 
eral circulation  in  said  county,  stating  in  said  notice,  the  time,  place 

anr1   terms  of  said  sale;    and  on    the  day   of  A.   D. 

19 ,   I   attended    personally  the   sale   and   at   the   hour   of  

o'clock,   m.,    I    offered    said    real    estate    for   sale,    and    then    and 

there   publicly    struck  off   and    sold   the  first   parcel    to   F.    A.   B.   and 

M.    E.    B.    for   the   sum    of   dollars,    they    being   the    highest 

and  best  bidders  therefor,   and   that   being  more  than   two-thirds   the 
appraised    value    thereof,    and    then    and    there    also    publicly    struck 

off  and  sold  the  second  parcel  to  W.   N.  W.   for  the  sum  of  

dollars,    he    being    the    highest    and    best    bidder    therefor,    and    that 
being  more  than  two-thirds  its  appraised  value. 

W.  B.  P., 
Guardian  of  G.  W.  W. 

Dated  the day  of  ,  A.  D.  19 . 


MF.RWIXE    OX    KE\L    ACTION.-.  296 

No.  177.     Entry  cormrming  sale  and  ordering  deed. 

This  day  this  cause  came  on  to  be  heard  upon  the  return  of 
the  order  of  sale  by  W.  B.  P..  guardian  of  G.  W.  W..  an  insane 
person,  and  the  motion  of  said  guardian  to  confirm  the  same  as  to 
the  second  parcel.  The  court  upon  careful  examination  and  consid- 
eration of  said  return  and  the  proceedings  of  said  guardian  under 
said  order  of  sale,  and  finding  the  same  in  all  respects  regular  and 
in  conformity  to  the  law  and  the  orders  of  this  court,  the  same  is 
hereby  approved  and  confirmed.  It  is  also  further  ordered  that 
the  said  W.  B.  P..  as  guardian  of  said  G.  W.  W.,  execute  and  deliver 
to  the  purchasers  W.  N.  W.  and  C.  L.  M.  a  good  and  sufficient  deed 
for  the  second  parcel  described  in  the  petition  and  the  order  of 
sale,  whenever  the  said  W.  N.  W.  and  C.  L.  M.  have  complied  with 
the  terms  of  said  sale.  It  being  made  to  appear  to  the  court  that 
said  purchasers  desire  to  pay  cash  for  said  property  instead  of  upon 
the  terms  fixed  by  the  court  and  the  court  finding  that  such  payment 
in  cash  is  for  the  interest  of  said  estate,  said  W.  B.  P.  is  hereby 
ordered  to  accept  said  cash  payment  instead  of  deferred  payment.. 
secured   by   mortgage. 

No.   178.     Guardian  "s  additional  bond  in  proceedings  to  sell 
real  estate. 

Kxow    all    Mrs    by    These    Presents:      That    we.    W.    S.    P.    and 

W.    P..   of   the   County   of  .   and   the    State   of   Ohio,   are    held 

and  firmly  bound  unto  the  said  State  of  Ohio,  in  the  sum  of  § 

for  the  payment  whereof,  well  and  truly  to  be  made,  we  bind  our- 
selves and  each  of  us.  our  heirs,  executors  and  administrators,  and 
each  of  them,  firmly  by  these  presents. 

Signed   by   us   and    dated   at  ,   this   — —   day  of  , 

19 . 

The  condition  of  the  above   obligation   is   such,   that 

Whebeas.   on   the day  of  .   19 .   W.   B.    P..   as 

guardian  of  G.  W.  W.,  filed  a  petition  in  the  Probate  Court  of  said 
county  against  said  ward  G.  W.  W.,  for  the  sale  of  the  real  estate 
of  said  ward.  G.  W.   W.,  described  in  said  petition:    and 

Whereas,    by    decree    of   said    court    made    in    said    cause   on    the 

day    of   .    19 .    it    was    considered    by    said    court 

that  said  real  estate  ought  to  be  sold  as  prayed  for  in  said  petition 
and  appointed  J.  G.  P.  and  A.  W.  D.  and  T.  E.  H..  three  judicious 
freeholders  of  said  county  and  not  of  kin  to  the  petitioner,  to  ap- 
praise said  real  estate  according  to  law;   and 

Whereas     afterwards,    to-wit:     on    the    day    of    , 

19 .  said  appraisers  filed   in  said  court  their  appraisement  of  said 

real  estate  in  writing,  signed  by  them,  from  which  it  appears  that 
they  appraised   the  s~-me  at   the  sum   of  S :    and 

Whebeas,  said  couit  upon  said  appraisement  being  filed  as  afore- 
said, made  an  order  requiring  said  W.  P.  P..  as  guardian  as  afore- 
said,  to   execute  a  bond  in  the   sum  of  ? ,   with  sufficient   free- 


2fJ7  FORMS. 

holders'    securities,    payable    to    the    State    of    Ohio,    and    conditioned 
according  to  law, 

Now.  if  the  said  W.  B.  P.,  guardian  as  aforesaid,  shall  well  and 
faithfully  discharge  each  and  every  of  his  duties  as  such  guardian, 
and  well  and  faithfully  pay  over  to  the  proper  person  or  persons 
and  account  for  all  money  arising  from  the  sale  of  said  real  estate 
according  to  lav.-,  then  these  presents  to  be  void,  otherwise  to  be 
and   remain  in  full   force  and  virtue  in  law. 


Signed  and   delivered   in    presence   of 


No.  179.     Guardian's  deed  in  sale  of  real  estate. 

Know  all  Men  by  These  Presents:     That   whereas,  on  the  

day   of   .    19 .    W.    B.    P.    was   duly    appointed    as    guardian 

of   G.    W.    W.   by   the    Probate    Court   of   County.    Ohio,    and 

afterward,    to-wit:     on    the    day    of    .    19 .    said 

guardian    filed    his    certain    petition    and    then    and    there   commenced 

an   action    in    the    Probate    Court    of    County.    Ohio,    against 

G.    W.    W..    and   numbered   on   the    docket    of   said   court    as    case    No. 

.  praying  among  other  things  for  an  order  of  sale  of  real   estate 

therein  mentioned  and  hereafter  described;    and 

Whereas,   such  proceedings   were  had   in   such  action,  that  on  the 

day   of   .    19 .    said    court    finding    the   allegations    of    said 

petition  true,  and  that  said  real  estate  ought  to  be  sold  as  prayed 
for  in  said   petition,  ordered  that  the  same  be  appraised,  and.  on  the 

day  of  .  19 .  said  court  further  ordered  that  said 

W.  B.  P.  proceed  according  to  law  to  sell  said  real  estate  at  public 
sale  for  not  less  than  two-thirds  the  appraised  value  thereof:  and 
on  the  same  day  in  pursuance  of  said  order  and  judgment,  an  order 
of  sale  of  said  real  estate  therein  described  was  issued  out  of  said 
court,  under  the  seal  thereof,  to  the  said  W.  B.  P..  as  guardian 
as  aforesaid  directed,  commanding  him  to  execute  said  order,  and 
of  the  same,  together  with  his  proceedings  thereon,  to  make  due 
return;    and 

Whereas,  said  W.  B.  P.  having  caused  said  premises  to  be  ap- 
praised   and    the    report    of    such    appraisement    to    be    filed    in    said 

Probate  Court,   and   having  on  the  day  of  .   19 . 

returned  said  order  of  sale  to  said  court  as  commanded,  with  his 
proceedings  thereon,  stating  in  substance  that  in  obedience  to  said 
order   he   duly    advertised    the    real    estate   therein    described    for   sale 

for    four    consecutive    weeks    before    the    day    of    sale    in    .    a 

newspaper    printed    and    of    general    circulation    in    Ohio.  -    in 

said   notice   the  time  and   place   of   sale,   and  on  the  lay   of 

.    19 .    he    attended     at    the    time    and    place    of    sal;-    and 

at    the    hour   of   o'clock,    a.    m.    he    offered    said    real    estate 


MERWTNE    ON    REAL    ACTIONS.  298 

hereinafter     described,     for     sale,     when     W.     N.     W.     bid     to     pay 

for  the   same  the  sum   of  $ ,   which   being  the  highest  and  best 

bid  for  the  same  that  was  offered,  and  being  more  than  two-thirds 
of  the  appraised  value  of  said  premises,  he  then  and  there  sold 
the  same  to  said  W.  N.  W.  for  that  sum;   and 

Whereas,  on  the  day  of  ,  the  said  court  having 

examined  the  proceedings  cf  the  said  W.  B.  P.  aforesaid,  under  this 
order  of  sale,  and  it  appearing  to  the  court  that  said  sale  was  in 
all  respects  legally  made,  ordered  that  the  same  be  approved  and 
confirmed,  and  that  said  W.  B.  P.  as  such  guardian  should  execute 
and  deliver  a  proper  deed  to  the  purchaser  of  the  real  estate  so 
sold,  all  of  which  will  more  fully  appear  by  the  records  of  said  court, 
to  which  reference  is  here  made, 

Now  Therefore  I,  the  said  W.  B.  P.,  as  guardian  of  said  G. 
"W.  W.  aforesaid,  by  virtue  of  said  judgment,  order  of  sale,  sale 
and  confirmation,  and  of  the  statute  in  such  cases  made  and  provided, 
and  of  the  powers  vested  in  said  guardian,  and  for  and  in  considera- 
tion of  the   premises   and  the  sum  of   $ paid   or  secured   to  be 

paid  to  said  W.  B.  P.,  do  grant,  bargain,  sell  and  convey  unto  the  said 
W.   N.   W.,   his  heirs   and  assigns  forever,   the   following  real   estate, 

situate  in  the  County  of  in  the  State  of ,  and  in  the 

City  of  ,  and  bounded  and  described  as  follows: 

To  Have  and  to  Hold  said  premises  with  all  the  privileges  and 
appurtenances  thereunto  belonging  to  the  said  W.  N.  W.,  his  heirs 
and  assigns  forever,  as  fully  and  completely  as  W.  B.  P.  as  such 
guardian  by  virtue  of  said  judgment,  order  of  sale,  sale  and  con- 
firmation, and  of  the  statute  made  and  provided  for  such  cases, 
might  or  should   sell  and  convey  the  same. 

In    Witness   Whereof,   the   said   W.    B.   P.,   as   such    guardian,    has 

hereunto  set  his  hand  this  day  of  ,  19 . 

W.  B.  P., 
As  Guardian  of  G.   W.  W. 

Signed  and  acknowledged  in  the  presence  of 


State  of  Ohio,  County,  ss.: 

Be  tt  Remembered,  That  on  this  day  of  ,  19 , 

before  me,  the  subscriber,  a  Notary  Public  in  and  for  said  county, 
personally  came  the  above  named  W.  B.  P.,  as  guardian  of  G.  W. 
W.,  the  grantor  in  the  foregoing  deed,  and  acknowledged  the  signing 
of  the  same  to  be  his  voluntary  act  and  deed,  as  such  guardian,  for 
the  uses  and  purposes  therein  mentioned. 

In  Testimony  Whereof,  I  have  hereunto  subscribed  my  name 
and  affixed  my  official  seal  on  the  day  and  year  last  aforesaid. 


Notary  Public,  County,  Ohio. 


299 


FORMS. 


PROCEDURE  FOR  THE  PRIVATE  SALE  OF  REAL  ESTATE 
BY  GUARDIAN  OF  AN  INFANT. 


FORMS. 

180.  Procedure  for  private  sale 
of  real  estate  of  an  infant 
— The   petition. 

Summons,  service  and  return 
of   sheritl'. 

Application  for  appointment 
of  guardian  ad  litem. 

Entry  appointing  guardians 
ad  litem  for  infant  defend- 
ants. 

Answer  of  guardian  ad  litem. 

Entry  by  court  ordering  ap- 
praisement. 

Order  issued  to  appraisers — 
Appraisement — Oath  of  ap- 
praisers and  return  of  ap- 
praisement  by   guardian. 

Confirmation  of  appraisement 
and  the  order  for  the  addi- 
tional  bond. 

Application  to  sell  real 
estate  at  private  sale,  and 
affidavits  supporting  the 
same. 


131. 


182. 


183. 


184. 
185. 

186. 


187. 


188. 


FORMS. 

189.  Court's   order   to    sell    at    pri- 

vate sale. 

190.  Order  to   sell   at   private   sale 

issued     to     guardian     and 
guardian's  affidavit  of  sale. 

191.  Guardian's    report    of    private 

sale. 

192.  Entry  confirming  private  sale, 

ordering  deed  and  distribu- 
tion of  proceeds. 

193.  Another   form   for   petition  to 

sell   ward's    real    estate. 

194.  Answer   of   widow   setting   up 

dower   estate. 

195.  Order    appointing    trustee    to 

answer    for    insane   defend- 
ant. 

196.  Answer  of  such  trustee  of  an 

insane    person. 

197.  Another    form    for    answer    of 

widow  setting  up  dower. 

198.  Court's  order  substituting  ap- 

praiser. 

199.  Order    of    court   setting    aside 

an  erroneous  appraisement. 


No.  180.     Petition  to  sell  real  estate. 

In   the   Probate   Court,   


County,   Ohio. 

H.  G.,  as  guardian  of  M.  B.  H., 
a  minor, 

Plaintiff, 

vs.  No.   . 

M.    B.    H.,    a    minor,    aged 

» years,    and    B.    M.   H., 

Defendants. 

The  plaintiff  represents  that  he  is  the  duly  appointed  and  qualified 

guardian    of    the    defendant    M.    B.    H.,    now    of   the    age    of    

years,  and   residing  with  his   father,   B.  M.   H.,  at  No.  ,  

Street  in  the  City  of  ,  Ohio;    that 

Said  ward  is  the  owner  in  fee  simple  of  an  undivided  one- 
fourth  interest  in  lots   Nos.  and  of  R.   A.'s   Subdivision   of 

Inlot  No.  in  the  City  of  ,  Ohio,  as  the  same  are  num- 
bered  and   delineated    upon   the    recorded    plat   of   said   subdivision   of 

record   in   the   recorder's   office  of  County,   Ohio,    Deed   Book 

,    page    ;     the    remaining    three-fourths    interest    in    the 

above  described  premises  being  owned  by  R.  A.  H.,  M.  L.  and  H.  N. 


MEKWINE   OM    REAL    ACTIONS.  300 

in    equal    shares    of    one-fourth    each.      Said    real    estate    rents    for    a 

total    of   dollars    per    year,    which    would   make    said    ward's 

share  of  said  rentals  dollars  per  year,  subject  to  his  propor- 
tionate share  of  the  taxes,  maintenance  and  repair  of  said  premises; 
that  plaintiff  has  not  as  yet  received  any  rents  whatever  from  any 
of   said   ward's  real   estate;    that 

The  sale  of  said  real  estate  is  necessary  both  for  the  main- 
tenance of  said  ward  and  the  plaintiff  believes  it  will  be  for  the 
interest  of  said  ward  to  sell  said  real  estate  and  reinvest  the  money 
arising  therefrom  either  in  State,  county  or  municipal  bonds,  or  in 
loans   upon  first  mortgage   securities  according  to  law;    that 

The  defendant,  B.  M.  H.,  father  of  said  ward  has  the  next  estate 
of  inheritance   in   said   real   estate. 

The  plaintiff  therefore  prays  that  the  said  M.  B.  H.  ana  B.  M. 
H.  may  be  made  defendants  to  this  petition,  and  that  plaintiff  may 
be  ordered  to  sell  said  real  estate  and  to  reinvest  the  money  arising 
therefrom  as  hereinbefore  proposed,  and  for  all  other  and  proper 
relief.  &■  &  G., 

Attorneys   for  Plaintiff, 

Petition  should  be  verified  as  in  other  eases. 

For  waiver  of  summons  and  entry  of  appearance,  see  No.  169. 

No.  181.     Summons,  service  and  return  of  sheriff. 

The    State    of   Ohio,   County,    ss.: 

To  the  Sheriff  of  said  County: 

You    are   commanded    to   notify    M.   B.    H.,   a   minor   aged   

years,   residing   with   his    father   B.    M.   H.    at   St.,   , 

Ohio,    that    on    the    day    of    A.    D.,    19 ,    H.    G., 

guardian  of  the   estate  of   M.   B.  H.  filed  his   petition   in   the  Probate 

Court   of   said   County,    Ohio,    against   him    and   others;    the 

object  and  prayer  of  which  petition  is  to  obtain  an  order  for  the 
sale  of  certain  real  estate  belonging  to  said  ward,  in  said  petition 
described,  for  the  maintenance  of  said  ward,  or  reinvest  the  money 
arising    therefrom    according    to    law,    and    that    unless    they    answer 

by  tne  day  of  ,   19 ,  said   petition   will  be  taken 

as   true,   and    an   order   granted   accordingly. 

Yon   will    make    due   return   of   this    writ   on    the   day    of 

A.    D.    19 . 

Witness    my   hand   and   the  seal    of  said   court,   this  day 

of  A.  D.   19 .  8.   L.   B., 

Judge  and  Ex  Officio  Cleric  of  said  Co. 

Sheriff's  Return. 

The    State    of   Ohio,   County,    ss.: 


Received  this   writ A.   D.    19 ,   at  o'clock 


v...  und  pursuant  to  its  command,  I  served  the  same  upon  the  within 
named  M.  B.  11..  a  minor,  and  B.  M.  H.,  the  father  of  said  M.  B.  H. 
by  leaving   a   true   and   duly   certified   copy   of  this  writ   with  all   the 


301  FORMS. 

endorsements  thereon  at  the  usual  place  of  residence  of  each  of 
them,  not  finding  after  due  and  diligent  search,  a  guardian  of  said 
M.  B.  H.  G.  J.  K.,  Sheriff. 

No.  182.     Application  for  appointment  of  guardian  ad  litem. 

In  the   Probate  Court,  County,   Ohio. 

H.  G.,  as  guardian  of  M.  B.  H., 
a  minor,  Plaintiff, 

vs.  No.    . 

M.    B.    H.,    a    minor,    aged 

years,  and  B.  M.  H..  Defendants. 

Now  comes  the  plaintiff,  by  G.  &  G.,  his  attorneys,  and  hereby 
applies  for  the  appointment  of  a  guardian  ad  litem  for  said  M.  B. 
H.,  a  minor  defendant  in  this  cause,  and  that  W.  C.  B.  be  appointed 
eaid   guardian.  H.    G.,    Guardian   of  M.   B.    H., 

By    G.    &    G.    His    Attorneys. 

No.  183.     Entry  appointing  guardian  ad  litem  for  infant  de- 
fendants. 

In  the   Probate  Court,   County,   Ohio. 

iH.  G.,  as  guardian  of  M.  B.  H., 
a  minor,  Plaintiff, 

vs.  No.   . 

M.    B.    H.,    a    minor,    aged 

years,  and  B.  ]\I.  H.,  Defendants. 

This  cause  coming  on  this  day  to  be  heard  and  it  appearing  to 
the  court  that  M.  B.  H.,  a  minor  defendant  hereto,  has  been  duly 
and  legally  served  with  process  herein  and  notified  of  the  pendency 
and  prayer  of  plaintiff's  petition,  the  court  on  motion  of  G.  &  G., 
counsel  for  plaintiff,  hereby  appoints  W.  G.  B.  guardian  ad  litem 
for  said  minor  defendant,  and  thereupon  the  said  W.  G.  B.  appearing 
in   open   court   accepts   said   appointment. 

No.  184.     Answer  of  guardian  ad  litem. 

In   the   Probate  Court,   County,   Ohio. 

H.  G.,   as   guardian   of  M.   B.   H., 
a  minor,  Plaintiff, 

vs.  No. . 

M.    B.    H.,    a    minor,    aged 

years,    and    B.    M.    H.,  Defendants. 

Now  comes  W..  G.  B.,  guardian  ad  litem,  heretofore  appointed  in 
this  cause  by  said  court  for  the  said  M.  B.  H.,  minor  defendant  to 
the  petition  in  said  cause  and  for  answer  to  said  petition  denies 
all   of   the  material   allegations    therein   contained    prejudicial    to   said 


MEKWINE   ON    REAL    ACTIONS.  302 

minor  defendants,  and  further  says  that  said  minor  defendant  is  of 
tender  years  and  not  acquainted  with  the  law  in  such  cases.  He 
therefore  prays  the  court  to  protect  his  rights  in  this  case  and 
for  such   relief  as   may   be   just.  W.   G.    B. 

No.  185.     Entry  by  court  ordering  appraisement. 

Is   the  Probate  Court,  County,   Ohio. 

H.  G.,  as  guardian  of  M.  B.  H., 
a  minor, 

Plaintiff, 

vs.  No.   » 

M.    B.    H.,    a    minor,    aged 

years,    and    B.    M.   H., 

Defendants. 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of 
plaintiff,  exhibits  and  testimony,  and  upon  the  return  of  the  sheriff 
heretofore  ordered,  and  the  answers  of  B.  W.  H.  and  W.  H.  B., 
the  guardian  ad  litem  of  M.  B.  H.;  and  the  court  being  fully  advised 
in  the  premises,  finds 

That  the  defendant,  M.  B.  H.,  has  been  duly  and  legally  served  with 
process  and  duly  notified  of  the  pendency  and  prayer  of  the  petition 
as  prescribed  by  law,  and  that  the  defendant  B.  M.  H.  has  duly  waived 
the  issuing  and  service  of  process  herein  and  entered  his  appearance 
in  this  cause  and  consented  in  writing  to  the  prayer  of  the  peti- 
tion  herein. 

That  the  statements  of  said  petition  are  true  and  that  the  real 
estate  described  therein  ought  to  be  sold  as  prayed  for  in  said 
petition.  Therefore  it  is  ordered  that  V.  H.,  P.  J.  M.  and  J.  S.,  judi- 
cious freeholders  of  this  county  and  not  of  kin  to  the  petitioner  be, 
and  they  are  hereby  appointed  appraisers  in  said  cause,  and  that  they 
be  sworn  as  required  by  law  before  entering  upon  the  discharge 
of  their  duties  as  said  appraisers;  that  said  appraisers  upon  actual 
view  of  the  premises  described  in  said  petition,  appraise  the  same 
at  its  fair  cash  value  and  that  said  appraisers  make  return  of  their 
appraisement  and  their  doings  herein  to  this  court  on  or  before 
the  day   of   A.    D.,   19 . 

No.  186.     Order  issued  to  appraisers — Appraisement — Oath  of 
appraisers — Return  of  appraisement  by  guardian. 

Probate  Court. 

The    State    of   Ohio,    County,    ss.: 

To  H.  (7.,  Guardian  of  M.  B.  H.,  a  minor,  Greeting: 

Tn  obedience  to  an  order  and  decree  of  the  Probate  Court  within 
and  for  said  county,  made  this  day  in  a  certain  cause  wherein  you 
as  guardian  of  M.  B.  H.,  a  minor,  are  plaintiff,  and  M.  B.   H.,  et  al, 


303  FORMS. 

are  defendants,  you  are  commanded  that  by  the  oaths  of  V.  A., 
P.  J.  M.  and  J.  S.,  judicious,  disinterested  men  of  the  vicinity,  not 
of  kin  to  the  petitioner,  who  are  freeholders  of  the  county  in  which 
said  real  estate  is  situated,  and  upon  actual  view,  you  cause  a  just 
valuation  and  appraisement  to  be  made  according  to  law,  of  the 
following  described  premises  therein,  to-wit:  (Here  insert  descrip- 
tion of  real  estate). 

You  will  make  return  of  your  proceedings  herein  to  our  said 
Probate  Court  forthwith  upon  execution  of  said  order,  and  have  you 
then   and   there  this   writ. 

Witness  my  signature  as  judge  and  ex  officio  clerk  of  our  said 
Probate    Court,    and    the    seal   of    said    court,    at    ,    Ohio,    this 

day   of  ,   A.    D.    19 . 

S.    L.    B.,    Probate   Judge. 

Return. 
To  the  Probate  Court  of County,  Ohio.- 

In  obedience  to  the  foregoing  order,  I  have  caused  the  same 
to  be  duly  executed  as  will  fully  appear  by  the  proceedings  hereto 
attached. 

Dated  this  day  of  ,  19 . 

H.  G.,  Guardian  of  M.  B.  H. 

Oath  of  Appraisers. 

The    State   of  Ohio,    County,   ss. : 

We,  the  undersigned  appraisers,  do  make  solemn  oath  that  we 
will,  upon  actual  view,  honestly  and  impartially  appraise  the  within 
described  real  estate  at  its  fair  cash  value,  and  perform  the  duties 
required  of  us  in  pursuance  of  the  foregoing  order.  V.  A., 

P.  J.  M., 
J.  S., 
Appraisers. 

Sworn    to   before    me   and    signed    in   my   presence   this    day 

of  ,    19 . 

G.  J.  N., 
Notary  Public,  County,   0. 

Appraisement. 

In  obedience  to  the  foregoing  order,  after  being  first  duly  sworn, 
and  upon  actual  view  of  the  premises  therein  described,  we,  the 
undersigned    appraisers    estimate    the    value    of    said    real    estate    at 

dollars. 

Given  under  our  hands,  this  day  of  ,  19 . 


V.  A.. 
P.  J.  M., 
J.   S.. 
Pees   of   appraisers,   $ per  day   each.  Appraisers. 


MEKWTNE    ON    1JEAL    ACTIONS.  304 

No.  187.     Confirmation  of  appraisement  and  additional  bond. 

H.  G.,  as  guardian  of  M.  B.  H.,  a  minor, 
Plaintiff, 

vs.  No.   . 

M.  B.  H.,  a  minor,  aged years, 

and  B.  M.  H., 

Defendants. 

This  day  came  the  appraisers  heretofore  appointed  in  this  case, 
and  filed  their  report  herein,  all  of  which  being  examined,  the  court 
finds  has  been  duly  made.  It  is  thereupon  ordered  by  the  court  that 
said    report   be  approved   and   confirmed. 

It  is  further  ordered  that  the  said  H.  G.  execute  to  the  State  of 
Ohio,  a  bond  with  sufficient  surety  to  the  acceptance  of  the  court  in 

the  sum  of  dollars,  being  more  than   double  the  amount  of 

the  appraised  value  of  the  real  estate,  conditioned  according  to  law. 

No.  188.     Application  to  sell  at  private  sale — Affidavits  sup- 
porting'  same. 

H.  G.,  as  guardian  of  M.  B.  H.,  a  minor. 
Plaintiff, 

vs.  No.   . 

M.  B.  H.,  a  minor,  aged  years, 

and  B.  M.  H., 

Defendants. 

The  undersigned  applicant  represents  that  it  would  be  best  for  the 
interest  of  the  said  H.  G.,  guardian  of  M.  B.  H.,  to  sell  the  real  estate 
described  in  the  petition  in  this  cause  at  private  sale  for  the  following 
reasons:  That  the  interest  of  said  ward  is  an  undivided  one-fourth, 
which  can  not  be  sold  for  the  full  appraised  value  thereof,  unless  the 
proposed  purchaser  could  acquire  the  remaining  three-fourths  interest 
of  said  premises;   that  an  offer  has  been  made  to  purchase  the  entire 

property  for  $ ,  and  if  the  interest  of  the  ward  can  be  sold  for 

one-fourth  of  said  purchase  price,  it  will  be  more  than  could  be 
received  if  attempted  to  be  sold  without  the  purchaser  buying  the  re- 
maining interest,  and  it  will  further  save  the  estate  the  cost  con- 
nected  with   the  advertising  thereof  at   public  sale. 

The  applicant  therefore  asks  for  an  order  authorizing  him  to  sell 
said  real  estate  at  private  sale.  H.  G., 

Guardian   of  M.    B.   H. 
State  of  Ohio,  County,  ss. : 

H.  G.,  being  duly  sworn,  says  that  the  various  matters  set  forth 
in  the  foregoing  application  are  true  as  he  verily  believes. 

H.    G., 


Sworn   to   and   subscribed   before  me   by   the   said    H.   G.,   this   — 

day  of  ,  19 .  N.    G., 

Notary  Public,  County,  Ohio. 


305  FORMS. 

State  of  Ohio,  County,  ss. : 

V.  A.,  being  duly  sworn,  says  that  he  has  read  the  application  to 
which  this  affidavit  is  annexed;  that  he  has  no  interest  whatever  in 
the  matters  therein  referred  to,  and  that  it  will  be  best  for  the 
interests  of  said  M.  B.  H.  to  sell  said  land  at  private  sale,  as  he 
verily  believes.  V.  A. 

Sworn  to  and  subscribed  before  me  this  day  of  ,  A. 

D.    19 .  N.    G., 

Notary  Public    in  and  for  County,  Ohio. 

No.  189.     Order  to  sell  at  private  sale. 

H.  G.,  as  guardian  of  M.  B.  H.,  a  minor. 
Plaintiff, 

vs.  No.   . 

M.   B.   H.,  a  minor,   aged  years, 

and  B.  M.  H., 

Defendants. 

This  cause  coming  on  this  day  further  to  be  heard,  and  it  appearing 
to  the  court  that  the  appraisement  heretofore  ordered  has  been  made 
and  confirmed  by  the  court;  that  said  H.  G.,  guardian  of  plaintiff 
above  named,  has  given  bond  in  double  the  amount  of  said  appraise- 
ment with  surety  conditioned  as  provided  by  law,  and  which  bond  is 
approved  by  the  court,  and  it  having  been  made  to  appear  upon  satis- 
factory evidence  to  the  court  that  it  would  be  for  the  interest  of  said 
ward  to  sell  the  real  estate  described  in  the  petition  in  this  cause  at 
private  sale,  it  is  therefore  ordered  by  the  court  that  the  petitioner  pro- 
ceed to  sell  the  premises  in  the  petition  described  at  private  sale  for  not 
less  than  its  appraised  value,  for  cash,  and  that  the  petitioner  make 
due  return  of  his  proceedings  herein  subject  to  the  further  order 
of   this   court. 

No.  190.  Order  to  sell  at  private  sale  issued  to  guardian — 
Report  of  sale  by  guardian  and  guardian's  affidavit  of 
sale. 

The  State  of  Ohio,  County,  ss.: 

To  II.  C.  Guardian  of  M.  B.  H.,  a  minor.  Greeting: 

In  obedience  to  an  order  and  decree  of  the  Probate  Court    within 

and  for  said  county,  made  this  day,  in  a  certain  cause    No.  , 

now  pending  in  said  court,  wherein  you,  as  guardian  of  M.  B.  H.,  a 
minor,  are  plaintiff,  and  your  ward  et  al,  are  defendants,  you  are  com- 
manded to  proceed  according  to  law,  to  sell  at  private  sale  for  not  less 
than  the  appraised  value  thereof,  the  following  described  premises, 
to-wit:      (Here  insert  description  of  real  estate). 

Said  sale  to  be  at  private  sale,  and  to  be  upon  the  following 
t<  i-'-.r:      Cash. 


MERWINE   ON    REAL   ACTIONS.  306 

You  will  make  return  of  your  proceedings  to  this  court  forthwith 
upon   execution  of  this   order. 

Witness    my    signature    and    the    seal    of    said    Probate    Court   at 

: ,  Ohio,  this  day  of ,  A.  D.   19 . 

S.    L.    B., 
Probate  Judge. 

No.  191.     Guardian's  report  of  private  sale. 

In    obedience    to    the    within    order,    I    sold    said    premises    on    the 

day    of  ,    A.    D.    19 ,    to   W.    B.    P.,    for    the    sum    of 

$ ,  said  sum   being  the  appraised   value  of  the  same. 

H.  G., 
Guardian  of  M.  B.  H. 

Dated  the  day  of  ,  A.   D.  19 . 

The  State  of  Ohio,  County,  ss.: 

The  above  named  H.  G.,  guardian  of  M.  B.  H.,  being  duly  sworn, 
says  that  the  sale  above  reported  has  been  made  after  diligent 
endeavor  to  obtain  the  best  price  for  said  property,  and  that  said  sale 
is  for  the  highest  price  he  could  get  for  said  property. 

H.  G., 
Guardian  of  M.  B.  H. 

Sworn  to  before  me  and  signed  in  my  presence,  this  day  of 

,  A.  D.  19 .  S.  L.  B.( 

Probate   Judge. 

No.  192.     Confirmation  of  sale,  deed  ordered  and  distribution 
of  proceeds. 

H.  G.,  as  guardian  of  M.  B.  H.,  a  minor, 
Plaintiff, 

vs.  No.   . 

M.  B.  H.,  a  minor,  aged  years, 

and  B.  M.  H., 

Defendants. 


This  day  this  cause  came  on  to  be  heard  upon  the  motion  of  the 
petitioner  to  confirm  the  sale  made  in  obedience  of  the  order  hereto- 
fore made  in  this  case;  and  the  court  having  carefully  examined 
the  proceedings  of  petitioner  upon  said  order  of  sale,  and  finding  them 
in  all  matters  correct,  and  being  satisfied  that  said  sale  was  fairly 
and  legally  made,  does  order  that  the  same  be,  and.it  is  hereby 
approved  and  confirmed,  and  it  is  further  ordered  that  the  petitioner 
make  a  deed  of  all  the  right,  title  and  interest  of  the  said  M.  B.  H. 
in  and  to  said  lands  to  the  purchaser  named  in  the  petitioner's  report 
of  sale  herein,  and 

It  is  further  ordered  that  the  petitioner  pay  out  of  the  proceeds 
arising  from   the  sale  of  said   lands: 


307 


FORMS. 


First:  The  taxes  for  the  last  half  of  the  year  ,  amount- 
ing   to    $ . 

Second:     The  costs  of  this  proceeding,   taxed  at  $ ,   which 

costs,    including   a   counsel    fee   of    $ ,    to    G.    &    G.,    attorneys, 

must  be  paid  within  ten  days,  or  in  default  thereof  that  execution  issue 
therefor. 

193.     Petition  for  sale  of  real  estate  by  guardian  of  an  insane 
person. 

Probate  Court  or  —  County,  Ohio. 

E.  W.,  Guardian  of  F.  L.  W.,  an 
insane  person, 

Plaintiff, 

vs.  NO.  :. 

E.    W.,    The    B.    S.    B.    &    L.    Co., 
The   H.   Bank,   The  F.   N.   Bank  of 
,  Ohio, 

E.  C,  R.  B.,  M.  C,  A.  W.,  a  minor, 
C.  G.  W.,  a  minor,  M.  C.  W.,  a  minor, 
M.  A.  W.,  a  minor,  J.  C.  W.,   a   minor, 

F.  L.      W.,      an     insane      person, 

Defendants. 

Petition  to  sell  Real  Estate. 

The  plaintiff  is  the  duly  appointed,  qualified  and  acting  guardian 
of  the  person  and  estate  of  F.  L.  W.,  an  insane  person,  aged 


years,  said  appointment  having  been  made  by  the  Probate  Court  of 
—   County,   Ohio. 

The  defendant.  E.  W.,  is  the  wife  of  the  said  F.  L.  W.,  and  is 
possessed  of  an  inchoate  right  of  dower  in  the  real  estate  hereinafter 
described.      The    B.    S.    B.    &    L.    Company    and    The    F.    N.    Bank    of 

Ohio,  are  corporations;    The  H.  Bank   is  a  partnership;    the 

defendants,  Q.  W.,  aged  years;   G.  G.  W.,  aged  years;   M.  C. 

W.,  aged  years;    M.  K.  W.,  aged  years,  and  J.  C.  W.,  aged 

years,  are  all  of  the  children  of  the  said  F.  L.  W.,  and  together 

with  the  said  E.  W.,  the  mother  of  said  minor  children,  are  all 
of  the  persons  entitled  to  the  next  estate  of  inheritance  in  the  real 
estate    hereinafter    described. 

The  personal  estate  of  the  said  ward  that  has  come  to  the  knowl- 
edge of  the  plaintiff,  consists  of  a  certain  stock  worth  about 

$ ,   and  altogether   does   not    amount   to   more   than   $ . 

The  said  guardian  has  made  no  disposition  of  the  said  personal 
estate   at   this   time,    but   intends   to   sell    the   same. 

The  said  ward  has  no  personal  estate  dependent  upon  the  settle- 
ment of  any  of  decedent's  estate,  or  upon  the  execution  of  any  trust. 

The  annual  rental  value  of  the  real  estate  hereinafter  mentioned, 

is  about  $ per  year.     The  said  guardian  has  not  collected  any 

rent  since  her  appointment. 


MERWINE   ON   REAL    ACTIONS.  308 

It  will  be  necessary  to  use  the  proceeds  of  the  sale  of  the  real 
estate  to  pay  the  debts  of  the  said  ward. 

Said    real    estate    is    owned    in    fee    simple    by    said    ward,    and    is 

situated    near   the    village    of    ,   Township,    

County,   Ohio,  and   is   more   particularly   described   as   follows,   to-wit: 
(Here  insert  description  of  real   estate). 

The  defendant,  The  B.  S.  B.  &  L.  Company,  has  a  mortgage  upon 

said  real  estate  upon  which  there  is  due  about  the  sum  of  $ . 

The   H.   Bank   claims   a   mortgage   on   said    real   estate,    amounting   to 

about   $ ,  the  same  now  being  owned   and  held  by  The  F.  N. 

Bank  of  ,  Ohio. 

The  said  ward   is  indebted  to   The   H.  C.  A.   B.'s  Company   in  the 

sum    of   about   $ ;    to    C.    S.,    of  ,    Ohio,    in    about    the 

sum  of  $ ;    to  E.   E.  S.  &  Company,  of  ,  Ohio,   in  the 

sum    of   about    % ;    and    owes    various   other   smaller   accounts, 

the  exact  nature  of  the  same  being  unknown  to  the  plaintiff. 

It  is  necessary  to  sell  the  said  real  estate  in  order  to  pay  the 
said  debts,  the  personal  estate  of  the  said  ward  being  insufficient  to 
pay  said  debts,  and  the  above  real  estate  being  all  of  the  real  estate 
.owned   by   the   said   ward. 

The  said  ward  is  now  confined  in  the  hospital  for  the  insane  in 
—    County,    Ohio. 

The  defendants,  R.  B.,  M.  C.  and  E.  C.  have  or  claim  to  have 
some  interest  in  said  real  estate,  and  plaintiff  prays  that  they  may  be 
compelled  to  set  up  herein  whatever  interest  they  have  or  be  forever 
barred  from  asserting  the   same. 

In  the  opinion  of  this  plaintiff  it  will  be  to  the  best  interest  of 
the  estate  of  the  said  ward  and  to  the  best  interest  of  said  creditors 
to  sell  said  real  estate  at  private  sale,  but  the  plaintiff  should  be 
authorized  to  sell  the  said  real  estate  at  public  sale  according  to  law, 
in  the  event  the  same  is   not  sold  at  private  sale. 

Wherefore,  The  plaintiff  prays  that  the  court  will  fix  a  time  for 
the  hearing  of  this  petition  and  for  the  service  of  notice  upon  all 
defendants,  and  that  upon  a  hearing  of  this  matter,  the  plaintiff  may 
be  ordered  to  sell  the  said  real  estate  at  private  sale,  or  at  public 
auction  in  accordance  with  law,  and  that  the  plaintiff  may  be  given 
all   relief  to  which  she  is   entitled.  F.  C.  R., 

Attorney  for  Plaintiff. 

Petition   should  be  verified   as   in   other  cases. 

No.  194.     Answer  of  widow  setting  r.;o  dower  estate. 
i  Same  caption  ;i^  in  petition,  i 

Now  comes  E.  W.,  and  for  her  answer  herein,  says  she  is  the  wife 
of  F.  U.  W-i  :i'i(i  'bat  the  said  F.  L.  W.  is  seized  in  fee  simple  of  the  real 
estate   mentioned   and  described    in   the   petition   herein,   and   that.  tb^e 

said  F.  L.  W.  is  years  of  age,  and  that  she  is  years 

of  age,  and   that   she   is   possessed   of   an    inchoate   right  of  dower  in. 
the  real  estate  described  in  the  petition. 


309 


FORMS. 


This  answering  defendant  prays  that  upon  the  sale  of  the  real 
estate  her  rights  may  be  protected  and  her  dower  allowed. 

F.  W.  C, 
Attorney   for  E.   W. 

Answer  should   be   verified  as   in   other   cases. 

No.  195.     Order  appointing  trustee  to  answer  for  insane  de- 
fendant. 

(Same  caption  as  in  petition.) 

It  appearing  to  the  court  that  the  defendant  in  this  case,  F.  L.  W., 
is  manifestly  an  insane  person,  and  that  his  legal  guardian  has  an 
interest  in  this  action  adverse  to  said  defendant,  it  is  hereby  ordered 
that  S.  A.  S.  be,  and  he  hereby  is  appointed  trustee  for  said  defendant 
in  this  suit,  to  appear  and   defend   the  same. 

No.  196.     Answer  of  such  trustee  of  an  insane  person. 

(Same  caption  as  in  petition.) 

And  now  comes  the  defendant,  F.  L.  W.,  an  insane  person,  by  S.  A. 
S.,  his  duly  appointed  trustee  herein,  and  for  answer  to  the  petition 
of  the  plaintiff  denies  each  and  every  material  allegation  contained  in 
said  petition  that  is  in  any  way  prejudicial  to  this  defendant. 

S.  A.  S., 
As  Trustee  of  F.  L.  W.,  an  insane  person. 

Answer  should  be  verified  as  in  other  cases. 

No.  197.     Another  form  for  answer  of  widow  setting  up  dower. 

In  the  Probate  Court  of County,  Ohio. 

E.  K.,  as  guardian  of  H.  K. 
and  H.  K.  minors, 
Plaintiff, 

vs.  No.  . 

H.  K.,  a  minor,   H.   K.,  a  minor, 
C.  K.  and  E.  K.,  widow  of  J.  F.  K., 
deceased, 

Defendants. 

Answer  of  E.  K. 

Now  comes  E.  K.  and  waives  the  issuing  and  service  of  summons 
and  enters  her  appearance  herein,  and  consents  to  the  sale  of  the 
interest  of  said  H.  K.  and  H.  K.,  minors,  in  the  real  estate  de- 
scribed in  said  petition,  and  further  answering,  says  that  she  is  the 
widow  of  J.  F.  K.,  who  died  seized  of  the  real  estate  in  the  petition 
described,  and  which  real  estate  descended  to  the  said  H.  K.  and  H.  K., 
minors,  and  C.  K.,  the  only  heirs  and  children  of  the  said  J.  F.  K., 
in  equal  portions,  and  that  each  thereof  is  entitled  to  an  undivided 
one-third  interest  in  said  real  estate. 


MERWINF   ON   REAL    ACTIONS.  310 

That  she  is  entitled  to  her  dower  interest  in  said  real  estate. 

The  said  B.  K.  therefore  concurs  in  the  prayer  of  said  petition  and 
asks  that  her  dower  interest  in  said  real  estate  of  said  minors  may  be 
determined,  and  that  the  interest  of  the  said  wards  in  the  said  real 
estate  may  be  sold,  and  that  her  dower  interest  therein  may  be  deter- 
mined and  paid  to  her  in  cash  or  that  the  said  interest  of  said  wards 
be  sold  subject  to  her  said  dower  interest  and  for  all  other  and  proper 
relief. 

Answer  should  be  verified  in  usual  way.  E.  K., 


No.  198.     Court's  order  substituting  an  appraiser. 

E.  K.,  as  guardian  of  H.  K. 
and   H.  K.  minors, 
Plaintiff, 

vs.  No.   . 

H.  K.,  a  minor,   H.   K.,  a  minor, 

C.  K.  and  E.  K.,  widow  of  J.  F.  K., 
deceased, 

Defendants. 
It  appearing  to  the  court  that  E.  B.  K.,  one  of  the  appraisers  ap- 
pointed  herein,  is  unable  to   discharge  his   duties  as. such,   C.   A.   M., 
a  judicious,  disinterested  freeholder  of  the  vicinity,  is  hereby  appointed 
as  appraiser  in  his  stead  under  the  former  decree  of  the  court  herein. 

No.  199.     Order  of  court  setting  aside  an  erroneous  appraise- 
ment. 

Probate  Court, County,  Ohio. 

D.  D.    S.,   Guardian   of  the 
estates  of  C.  M.  D.,  et  al, 

Plaintiff, 

vs.  No.  . 

J.  R.  D.,  et  al, 

Defendants. 

Journal  Entry. 

On  motion  of  D.  D.  S.,  guardian,  and  it  appearing  to  the  court  that 
the  appraisement  heretofore  made  herein  under  the  former  order  of 
this  court  was  erroneous  and  made  by  the  appraisers  heretofore  ap- 
pointed under  a  mistake  and  misunderstanding  of  the  order  of  appraise- 
ment, it  is  ordered  that  said  appraisement  be,  and  the  same  is  hereby 
set  aside  and  held  for  naught,  and  that  the  order  of  sale  heretofore 
made  by  this  court,  based  on  said  appraisement,  be  and  the  same  is 
hereby  vacated  and  set  aside. 

It  is  further  ordered  that  said  appraisers  proceed  to  value  and 
appraise  the  premises  described  in  plaintiff's  petition  herein  at  its 
true  value  in  money,  free  from  the  dower  estate  herein  of  the  defendant 
J.  R.   D. 


CHAPTER  VII. 

SALE  OF  REAL  ESTATE  BY  AN  ASSIGNEE   FOR  THE 
BENEFIT    OF   CREDITORS. 


SECTION. 

261.  Preliminary    statement. 

262.  1  lie    deed    of   assignment. 

263.  The  nature  of  the  title  to  the 

real  estate  conveyed  to  an 
assignee. 
2H4.  Who  may  make  an  assign- 
ment for  the  benefit  of 
creditors — The  bonds  re- 
quired and  their  conditions. 

265.  The    court    must    appoint    an 

assignee  in  case  of  the  fail- 
ure of  an  assignee  to  qual- 
ify- 

266.  In     case     of     resignation     the 

court  to  appoint  assignee. 

267.  Under      what      circumstances 

creditors  may  select  an  as- 
signee or   trustee. 

268.  The     court     may    remove    as- 

signee, when  —  Effect  of 
new   bond   in   such  case. 

269.  The  appointment  of  a  trustee 

in  place  of  an  assignee  or 
trustee — His  powers  and 
duties. 

270.  The  appointment  of  a  trustee 

to  act  in  the  place  of  an 
assignee. 

271.  Notice  required  in  case  a  trus- 

tee is  appointed  to  act  for 
and  in  place  of  an  assignee. 

272.  The    inventory    and    appraise- 

ment of  real  estate  as- 
signed— Duty  of  assignee 
where  real  estate  is  situ- 
ated in  another  county. 

273.  What    property    exempt    from 

the  assignment — The  home- 
stead exemption. 
311 


SECTION. 

274.  The    real   estate   must  be  con- 

verted  into  money. 

275.  In  what  case  no  petition  need 

be  filed  for  sale  of  real  es- 
tate 

276.  In  what  court  the  action  must 

be  brought. 

277.  The   procedure  in  sale  of  real 

estate  by    an   assignee. 

278.  Notice    of    time   and    place    of 

sale  of  real  estate,  and 
amount  for  which  the  same 
can  be  sold. 
270.  Manner  in  which  real  estate 
may  be  sold  at  public  auc- 
tion— Enforcement  of  con- 
tracts. 

280.  Manner   in    which    real    est:ite 

may  be  sold  at  private  sale. 

281.  When   the   court   may   fix   the 

amount  at  which  the  real 
estate    may    he    sold. 

282.  Procedure  as  to  wife's  dower. 

283.  Procedure   when   wife  joins  in 

mi  rtgage,  or  mortgage  is 
for    purchase    money. 

284.  Manner   of    payment  of   liens. 

Questions  of  dower,  home- 
stead, completion  of  real 
contracts  of  assignor,  ami 
application  of  proceeds  of 
sale. 

285.  The    order     to    release    mort- 

gages or  liens  in  recorder's 
office. 

286.  Procedure  when  town  lots  are 

to  be  laid  out. 

287.  Confirmation  of   sale   and   or- 

der for  deed. 


§§  261-263  MERWINE    ON    REAL,    ACTIONS.  312 

Sec.  261.     Preliminary  statement. 

This  action  seldom  appears  in  our  courts.  Our  bankruptcy 
court  now  has  almost  exclusive  charge  of  insolvency  matters 
in  this  State.  However,  as  every  lawyer  is  occasionally  re- 
quired to  conduct,  in  our  courts,  a  sale  of  real  estate  for  an 
assign 3e  for  the  benefit  of  creditors  of  an  insolvent  debtor, 
this  chapter,  in  the  following  sections,  will  set  forth  the  law 
on  the  subject.  It  must  be  kept  in  mind  that  on  the  filing  of 
a  petition  in  bankruptcy  against  an  assignor  in  insolvency,  all 
proceedings  in  the  State  courts  are  stayed.24 

Sec.  262.     The  deed  of  assignment. 

Before  the  action  can  be  brought,  a  deed  of  assignment  must 
have  been  executed,  acknowledged,  witnessed  and  delivered, 
and  the  deed  filed  with  the  probate  court  of  the  county  in  which 
the  assignee  is  living  at  the  time  of  the  assignment.  The  deed 
of  assignment  must  be  executed  and  delivered  in  conformity 
with  the  deed  statutes  of  the  State.25 

The  trust  must  be  accepted  by  the  assignee,  and  he  must 
give  bond  in  the  county  where  the  deed  is  filed.  This  being 
done,  the  probate  court  of  that  county  has  exclusive  jurisdiction 
to  appoint  and  qualify  such  assignee.26 

Sec.  263.  The  nature  of  the  title  to  the  real  estate  conveyed 
to  an  assignee. 
By  a  long  line  of  decisions  in  this  State,  it  is  a  well  settled 
doctrine,  that  where  a  deed  of  assignment  is  made  by  an  in- 
solvent debtor  of  all  his  real  estate  to  an  assignee,  in  trust 
for  the  payment  of  his  debts,  by  a  deed  executed  in  conformity 
to  the  requirements  of  the  statutes  in  this  State,  the  assignee, 
or  a  substitute  for  him,  appointed  by  the  court,  accepting  the 
trust  and  filing  and  proving  the  execution  of  the  assignment 
in  the  probate  court,  and  taking  upon  himself  the  duties  of  the 

24  Section      11,     Bankruptcy     Act.  corded.      Kl"j1i-I(iii    v.    Harrison.    <il 

Complete     Ohio     Probate     Practice  0.  S.  397.     See  No.  200  for  form  of 

§  ].r)43.  deed  of  assignment,  and  No.  201  for 

2spfeifer   v.   Cooke,    11    W.  L.    B.  acceptance  of  trust. 
320;    Kingman   v.   Lawyer,  40  O.  S.  2«Gen'l     Code.     §10492      (II.     S. 

109.     The  deed  of  assignment   need  §524).    See  Gen'l  Code,  §  11092  (R. 

not   be    filed    with    the    recorder,  hut  S.    §6335)    for    the    requirement    as 

where   the  assignor   lias  real   estate  to  the  bond, 
in  another  countv,   it   should   be   re- 


313 


SALE  OF  REAL  ESTATE  FOR  BENEFIT  OF  CREDITORS.   §  264 


trust,  is  a  transfer  of  the  title  to  the  real  estate  of  the  assignor, 
and  that  title  carries  with  it  the  right  of  the  possession  to  the 
real   estate.27 


Sec.  264.     Who  may  make  an  assignment  for  the  benefit  of 
creditors — The  bonds  required  and  their  conditions. 

When  any  person,  partnership,  association  or  corporation 
makes  an  assignment  to  a  trustee  of  any  property,  money, 
rights  or  credits  in  trust  for  the  benefit  of  creditors,  it  is  the 
duty  of  such  assignee,  within  ten  days  after  the  delivery  of 
the  assignmant  to  him,  and  before  disposing  of  any  property 
so  assigned,  to  appear  before  the  probate  judge  of  the  county 
in  which  the  assignor  resided  at  the  time  of  executing  the  said 
assignment,  produce  the  original  assignment,  or  a  copy  thereof, 
cause  the  same  to  be  filed  in  the  probate  court,  and  enter  into 
a  bond,  payable  to  the  State,  in  such  sum  and  with  such  sure- 
ties as  shall  be  approved  by  the  court,  conditioned  for  the 
faithful  performance,  by  such  assignee,  of  his  duties  according 
to  law ;  and  the  court  may  require  the  assignee,  or  any  trustee 
subsequently  appointed  to  execute  an  additional  undertaking 
whenever  the  interests  of  the  creditors  of  the  assignor  demand 
the  same;  and  such  assignment  takes  effect  only  from  the  time 
of  its  delivery  to  the  probate  judge,  and  the  exact  time  of  such 
delivery  must  be  indorsed  thereon  by  the  probate  judge,  who 
is  required  immediately  to  note  the  filing  on  the  journal  of 
the  court ;  and  it  may  be  delivered  by  the  assignor  to  the  pro- 
bate judge  either  before  or  after  its  delivery  to  the  assignee.28 

Sec.  265.     The  court  must  appoint  an  assignee  in  case  of  the 
failure  of  an  assignee  to  qualify. 

If  any   such   assignment   or   copy  thereof  be,   for  ten   days 
after  ths  execution  of  the  assignment,  not  filed  in  the  probate 


27  Ohio,  etc..  v.  Watters,  65  0.  S. 
157;  Little  v.  Eureka,  etc..  4  A.  L. 
R.  229:  affirmed  in  38  0.  S.  110: 
Wachtel  v.  Campbell,  7  N.  P.  507; 
In  re  Assignment  of  Mills,  7  N.  P. 
507;  Keen  v.  Hall,  31  0.  S.  107; 
Morgan  v.  Kinney.  38  0.  S.  010: 
Williams  v.  Muller,  1  W.  L.  M.  409: 
Jones  v.  Kilhourne.  4  O.  S.  401. 

28Qen'l  Code,  §  11092  and  §  11093 
(R.  S.  §6335). 


Assignment  operates  from  the  de- 
livery of  the  deed  to  the  judge  of 
the  probate  court.  Claffin  v.  Evans, 
55  O.  S.  183;  Harrison  v.  Chalfield, 
14  C.  C.  599. 

Member  of  firm  can  make  deed  of 
assignment.  In  re  Assignment  of 
Perrin,  4  N.  P.  2G2:  The  H.  B. 
Claffin  Co.  v.  Evans.  55  O.  S.    183. 

Mortgaged  property  executed  but 
not  recorded  is  void  as  against  the 


§§  266,  267  MERWINE   ON    REAL    ACTIONS.  314 

court  as  aforesaid,  or  if  the  assignee  named  thereon  fail  for 
that  time  to  give  bond  as  aforesaid,  the  court  is  required  on 
the  application  of  the  assignor,  or  of  any  of  his  creditors,  to 
make  an  order  removing  such  assignee  and  appoint  a  trustee 
in  his  place :  Provided,  that  if  more  than  one  assignee  be 
named  in  the  assignment,  and  some  of  them  fail  as  aforesaid, 
the  court  may  permit  the  assignee  or  assignees  complying  with 
the  preceding  section  to  qualify  and  enter  upon  the  discharge 
of  the  duties  of  the  trust.29 

Sec.  266.     In  case  of  resignation  the  court  to  appoint  trustee. 

Any  assignee  who  has  qualified,  and  any  trustee  appointed 
by  the  court  who  has  qualified,  may,  with  the  consent  of  the 
court,  resign  his  trust;  and  in  case  of  the  death,  removal  or 
resignation  of  a  sole  assignee  or  trustee,  it  is  made  the  duty 
of  the  court  to  appoint  one  or  more  trustees  in  his  place ;  but 
if  there  be  one  or  more  assignees  or  trustees  who  have  not 
died,  resigned  or  been  removed,  the  court  may  either  till  the 
vacancy  caused  by  death,  resignation,  or  removal,  or  alloAv 
the  remaining  assignee  or  assignees,  trustee  or  trustees,  to 
execute  the  trust  as  the  court  may  deem  best  for  the  trust; 
and  the  court  may  at  any  time,  on  application  of  the  majority 
of  the  'creditors  in  amount,  appoint  an  additional  trustee.30 

Sec.  267.     Under  what  circumstances  creditors  may  select  as- 
signee or  trustee. 

Whenever  any  creditor  or  creditors  of  the  assignor  fde  a 
complaint  alleging  that  the  assignee  or  assignees  named  in  the 
deed  of  assignment,  or  the  trustee  or  trustees  appointed  by  the 
court  under  the  provisions  of  the  next  two  preceding  sections 
are  not  suitable  persons  to  administer  the  trust,  or  that  their 
administration  thereof  will  not  be  for  the  best  interests  of  the 
creditors  of  the  assignor  and  such  assignor,  the  court  must 
thereupon  issue  a  citation  to  sueh  assignee  or  assignees  or 
trustee  or  trustees  and  to  the  assignor,  if  resident  within  the 
State,  to  appear  before  sueh  court  at  a  time  to  be  named 
therein.     And.  if  on  the  hearing  of  such  complaint,  it  be  made 

assignee  for  the  benefit  of  creditors.  30  Gen'l    Code,     §11095     ( R.     S. 

Snyder  v.  Betts,  2  C.  C.  485.  §6337). 

as  Gen'l     Code,     §  1 1094      ( R.     S. 
§633G). 


315     SALE  OF  REAL  ESTATE  FOR  BENEFIT  OF  CREDITORS.   §  268 

to  appear  to  the  satisfaction  of  the  court  that  such  complaint 
is  true,  and  a  petition  is  filed  with  the  court,  signed  by  cred- 
itors of  the  assignor  who  own  not  less  than  one  thousand 
dollars  of  debts  against  the  assignor,  and  the  validity  of  such 
debts  is  shown  by  the  schedule  of  debts  filed  with  the  court,  or 
otherwise  established  to  the  satisfaction  of  the  court,  praying 
for  permission  to  elect  a  trustee  or  trustees,  the  court  is  re- 
quired, by  its  orders,  to  fix  a  time  for  such  election  and  cause 
notices  to  be  sent  by  mail  or  otherwise  to  each  of  the  creditors 
of  the  assignor,  specifying  a  time  when  the  creditors  shall 
meet  at  the  court  room  for  the  election  of  a  trustee  or  trustees; 
and  at  the  time  named  in  such  order,  if  creditors  representing 
fifty  per  cent,  or  more  of  the  debts  of  the  assignor  are  present 
or  represented  by  an  attorney,  they  may  proceed  to  the  elec- 
tion of  a  trustee  or  trustees,  a  majority  in  value  of  all  the  debts 
so  represented  at  such  meeting  being  necessary  to  a  choice; 
and  the  proceedings  of  the  meeting  showing  what  creditors 
were  present  aforesaid,  and  the  amount  of  the  debts  held  by 
them  respectively,  and  who  cast  their  several  votes,  must  be 
made  out  and  signed  by  the  president  and  secretary  of  the 
meeting  and  filed  with  the  court;  and  if  the  court  approves 
the  choice,  and  if  the  trustee  or  trustees  so  elected  appear 
within  ten  days  thereafter  and  give  bond,  the  court  must  ap- 
point him  or  them  as  such  trustee  or  trustees,  and  remove  the 
preceding  assignee  or  trustee;  provided,  that  the  summary 
determination  of  the  court  as  to  who  are  creditors  in  the 
amount  of  their  claims  in  this  section  provided,  shall  have  no 
effect  as  to  the  validity  of  such  claims  except  for  the  purpose 
of  such  election.31 

Sec.  268.  The  court  may  remove  assignee,  when — Effect  of 
new  bond  in  such  case. 
The  court  is  empowered  to  remove  any  assignee  or  trustee, 
specifying  in  the  order  the  cause  of  removal;  and  on  applica- 
tion made  by  any  surety  or  sureties  of  the  assignee  or  trustee, 
the  court  may,  if  satisfied  of  the  reasonableness  of  tha  appli- 

■*•'  Cen'l  Code,  §  llOOfi  and  §  11007  point's  decision  under  assignment  is 

(R.  S.  $6338).  not  appealable.     Brigle  v.  Starbuck, 

A  person  voting  for  assignee  not  34    O.    S.    280.      Error    does    not    lie 

estopped    from    afterward    asserting  from     court's     order     removing     as- 

that  he  is  not  a  creditor.     Rhoades  aignee.     In  re  Jones'  Assignment,  5 

V.  Moore,   43   0.   S.   31.     When  the  N.  P.  102. 


§§  269,  270  MERWINE   ON    REAL   ACTIONS.  316 

cation,  require  such  assignee  or  trustee  to  give  a  new  bond,  or 
on  failura  so  to  do,  the  court  must  remove  such  assignee  or 
trustee ;  and  upon  a  new  bond  being  given  in  accordance  with 
such  orders  and  approved  by  the  court,  the  sureties  in  the 
original  bond  are,  by  the  order  of  the  court,  discharged  from 
further  liability.32 


Sec.  269.     The  appointment  of  a  trustee  in  place  of  an  assignee 
or  trustee — His  powers  and  duties. 

Whenever  the  probate  court  appoints  a  trustee  whether  in 
place  of  an  assignee  or  of  a  trustee  appointed  by  the  court,  such 
trustee  is  required,  within  ten  days  after  his  appointment,  to 
give  bond  as  aforesaid,  or,  failing  so  to  do,  he  may  be  consid- 
ered as  declining  the  appointment,  and  the  place  may  be  filled 
by  th3  court;  and  when  a  trustee  has  given  bond,  he  succeeds 
to  all  the  rights,  powers  and  privileges  of  the  preceding  as- 
signee or  trustae;  and  the  court  may  make  and  enforce  all 
orders  necessary  to  put  the  newly  appointsd  trustee  in  pos- 
session of  all  property,  moneys,  books,  papers,  evidences  of 
titla  and  other  effects  covered  by  the  assignment,  or  in  any 
way  belonging  to  the  trust ;  and  such  trustee  may,  by  suit  in 
the  court  of  common  pleas,  or  otherwise,  compel  the  delivery 
to  him  of  all  such  property,  moneys,  .books,  papers,  evidences 
of  title    and  oth?r  effects.33 

Sec.  270.     The  appointment  of  a  trustee  to  act  in  the  place  of 
the  assignee  operates  as  a  conveyance. 

Whenever  the  court  appoints  a  trustee  to  act  in  the  place 
of  the  assignee  of  the  debtor,  the  appointment  and  qualifica- 
tion of  the  trustee  so  appointed  operates  as  a  conveyance  of  all 
th3  property  originally  assigned  to  said  assignee.34 


32Gen'l     Code.     §11008      (R.     S.  Commercial    Bank  Assignment,  6  0. 

§6339).     When   an  assignee  in   the  I).  105. 

course    of    administering    the    trust  38  Gen'l     Code,     §1100!)      (R.     S. 

can    not    do    so    without    embarrass-  §0340). 

merit,   lie  will  lie  removed  upon  ap-  34  Gen'l     Code,     §11101      (R.     S. 

plication    of    the    creditors.      In    re  §  6342 ) . 


317     SALE  OF  REAL  ESTATE  FOR  BENEFIT  OF  CREDITORS.   §  271 

Sec.  271.  A  notice  required  in  case  a  trustee  is  appointed  to 
act  for  and  in  place  of  an  assignee. 
Every  assignee,  or  trustee  appointed  on  the  assignee  failing 
to  qualify,  is  required  within  thirty  days  after  giving  bond  to 
cause  notice  to  be  given  in  some  newspaper  of  gensral  circula- 
tion in  the  county,  for  three  consecutive  weeks,  of  his  appoint- 
ment as  such  assignee  or  trustee.35 

Sec.  272.  The  inventory  and  appraisement  of  real  estate  as- 
signed, and  duty  of  assignee  when  real  estate  is  situated 
in  another  county. 

Immediately  upon  the  assignee  giving  bond,  or  if  the  as- 
signee fail  to  give  bond,  then  upon  the  trustee  appointed  by 
the  court  giving  bond,  it  is  made  the  duty  of  the  court  to 
appoint  three  suitable,  disinterested  persons,  appraisers  of  the 
property  and  assets  of  the  assignor;  and  the  said  assignee  or 
trustee  must  within  thirty  days  after  giving  bond,  unless  for 
good  cause  shown  the  court  shall  allow  a  longer  time,  make 
and  file  in  the  court  an  inventory,  verified  by  his  oath,  of  all 
of  the  properties  which  shall  have  coma  to  his  possession  or 
knowledge,  together  with  an  appraisement  thereof  by  said 
appraisers  under  their  oath;  provided,  however,  that  if  any 
part  of  said  estate  or  effects  be  in  any  other  county,  the  as- 
signee or  trustee  may  have  appraisers  as  to  which  part  of  said 
estate  and  effects,  appointed  by  any  disinterested  justice  of 
such  county;  and  provided,  further,  that  if  the  assignment 
includes  real  estate  situate  Avithout  this  State,  it  will  not  be 
necessary  to  have  such  real  estate  appraised,  but  the  assignea, 
or  trustee  appointed  by  the  court,  must  sell  such  real  estate  at 
public  or  private  sale,  and  the  sale  must  be  confirmed,  if  the 
court  find  that  the  same  has  been  made  in  good  faith  and  for 
a  fair  price.36 

Sec.  273.     What  property  exempt  from  the  assignment— The 
homestead  exemption. 

No  assignmsnt  for  the  benefit  of  creditors  is  to  be  construed 
to  include  or  cover  any  property  exempt  from  levy  or  sale  on 
execution,  or  from  being  by  any  legal  process  applied  to  the 
payment  of  debts,  unless  in  the  assignment  tha  exemption  is 

•^Gen'l     Code,     §11108      (R.     S.  36  GenT  Code,  §  11109  and  §  11110 

§6346).  <R.  S.  §6347). 


§§  274-276  MERWINE   ON    REAL   ACTIONS.  318 

expressly  waived,  or  any  properly  belonging  to  the  wife  of  the 
assignor  nor  to  require  the  assignor  to  deliver  up  any  such 
property;  and  as  to  the  homestead  exemption  and  to  exempted 
property  that  has  to  be  selected  by  the  debtor  and  his  wife,  the 
appraisers  appointed  by  the  court,  will,  on  making  the  ap- 
praisement, set  the  same  off  in  the  same  way  that  appraisers 
of  property  levied  on  or  attached  are  required  to  do ;  and  if 
for  any  reason  this  setting  off  is  then  omitted,  the  court  may 
at  any  time  thereafter  and  before  the  sale,  order  the  same  to 
be  done  by  the  appraisers."  * 

The  right  to  a  homestead  in  the  property  assigned  has  been 
maintained  always  by  our  courts  in  favor  of  the  assignor  in 
a  contest  between  him  and  creditors  as  to  this  right.37 

Sec.  274.     The  real  estate  must  be  converted  into  money. 

The  assignee  or  trustee  is  required  to  proceed  at  once  to 
convert  all  the  assets  received  by  him  into  money,  and  to  sell 
the  real  estate  and  other  property  within  a  reasonable  time  at 
a  public  auction,  either  for  cash  or  upon  such  other  terms  as 
the  court  may  order.38 

Sec.  275.    In  what  case  a  petition  need  not  be  filed. 

The  proceeding  for  the  sale  of  real  estate  of  an  assignor  by 
the  assignee  to  pay  debts  of  the  assignor  need  not  be  brought 
in  the  courts  by  the  filing  of  a  petition  in  cases  where  there 
are  no  liens  standing  against  the  property,  or  no  dower  or 
homestead  rights  to  be  worked  out.  But  as  every  assignor's 
property  is  almost  always  involved  by  a  tangle  of  liens,  en- 
cumbrances and  various  other  rights  of  creditors,  it  seldom 
happens  that  the  real  estate  can  be  sold  except  by  the  action 
in  the  courts  which  in  all  respects  is  similar  to  the  action  by 
an  administrator  or  executor  to  sell  real  estate  to  pay  de- 
eedenl  's  debts.39 

Sec.  276.     In  what  courts  the  action  must  be  brought. 

The  probate  court  in  all  cases  where  it  has  the  power  to 
give  adequate  relief  in  assignment  matters  lias  exclusive  juris- 

*e*  Gen '1  Code,  §  11111  and  §  11112  S.  031:   Close  v.  St.  Clair,  38  O.  S. 

(H.  S.  §6348).  See  also  Gen']  Code,  5:50;    Kelly   v.   Duffy,  31   O.  S.  4.:7. 

§  1  [126  to  §  1  1132   (  R.  S.  §  0351  ) .  88  Gen'l      Code.     §  1 1 1 15      (  R.     S. 

■'■'In  re   Assignment  of  Bremer,  3  §6350). 
N.    P.    12:     Mercer    v.    Cunningham,  '-'Sec   No.   ]l(i   et   seq.  for  proce- 
ss  0.   S.  353:    Schuler  v.   Miller.  45  dure   in   such  sale  by  administrator 
O.  S.   325;    Kului  v.   Nieberg,  40  O.  or  executor. 


319 


SALE   OF    REAL   ESTATE   FOR   BENEFIT   OF    CREDITORS.       5  277 


diction  in  actions  to  sell  real  estate.  But  if  there  are  equitable 
questions  which  the  probata  court  does  not  have  the  power  to 
decide,  the  proceedings  must  be  conducted  in  the  court  of  com- 
mon pleas.4c 

This  being  so,  a  party  holding  a  mortgage  against  the  real 
estate  can  not,  as  against  the  objection  of  the  assignee,  bring 
his  action  to  foreclose  it  after  the  assignee  has  been  appointed 
and   qualified.41 

Sec.  277.     Procedure  in  sale  of  real  estate  by  an  assignee. 

As  stated  above  in  this  chapter,  the  procedure  is  almost 
identical  with  that  of  the  procedure  by  which  an  executor  or 
administrator  sells  the  real  estate  of  his  decedent  to  pay 
debts.  The  same  care  should  be  exercised  in  making  all  lien- 
holders  and  all  parties  interested,  parties  to  the  action,  and 
the  same  care  should  be  exercised  in  the  service  of  summons 
upon  every  defendant.  The  same  rules  of  law  apply  as  to  the 
conduct  of  the  action  where  there  are  infant  defendants  and 
guardians  for  infant  defendants.  The  same  rules  of  law  apply, 
where  the  parties  to  the  action  are  insane  or  imbecile  and  where 


*oGen'l  Code,  §11133  (K.  S. 
§  6351a). 

Robinson  v.  Williams,  62  O.  S. 
401 ;  Van  de  Mark  v.  Mattingly, 
62  0.  S.  25;  Brock  v.  Gregg,  63  0. 
S.  289. 

The  owner  of  an  estate  for  life  and 
the  owner  of  an  estate  in  remainder 
in  the  same  land,  joined  in  a  mort- 
gage upon  both  estates,  and  the  re- 
mainderman afterwards  made  an  as- 
signment of  his  estate  for  the  bene- 
fit of  creditors,  and  the  assignee 
filed  his  petition  in  the  probate 
court  against  the  assignor,  mort- 
gagee and  the  owner  of  the  life  es- 
tate, praying  for  an  order  to  sell 
such  remainder,  that  such  mort- 
gagee be  compelled  to  answer,  and 
asked  for  a  sale  of  both  estates  un- 
der his  mortgage,  and  that  the  life 
estate  be  sold  as  upon  execution. 
Held:  That  the  probate  court  had 
no  jurisdiction  to  order  a  sale  of  the 
life  estate  upon  the  petition  of  the 


assignee.     Brock  v.  Gregg,  63  O.  S. 
289. 

The  filing  of  a  deed  of  assignment 
and  qualification  of  the  assignee 
confer  upon  the  probate  court  juris- 
diction of  all  of  the  assigned  prop- 
erty, and  the  jurisdiction  conferred 
is  exclusive  in  all  respects  in  which 
it  is  adequate.  Mercer  v.  Cunning- 
ham, 53  0.  S.  361;  Saylor  v.  Simp- 
son, 45  0.  S.  141;  Havens  v.  Hor- 
ton,   53    0.    S.    342. 

"The  proceeding  being  a  proceed- 
ing in  rem  it  would  seem  that  the 
court  of  common  pleas  would  only 
have  jurisdiction  provided  the  land 
was  situated  in  the  county  of  such 
court.  Whether  an  action  could  be 
brought  in  the  court  of  common 
pleas  of  the  county  in  which  the  as- 
signment was  made,  where  there  is 
no  real  estate  located  therein,  is  not 
clear."  The  Complete  Probate  Prac- 
tice,  Vol.  2,    §  1620. 

4i  Havens  v.  Horton,  53  O.  S.  342 ; 
Wilson  v.  Swigert,  31  W.  L.  B.  353. 


§§  278,  279  MERWINE   ON    REAL,    ACTIONS.  320 

the  dower  rights  and  homestead  rights  are  involved.  As  the  stat- 
ute itself  calls  this  action  a  civil  action,  it  follows  that  the 
rules  of  law  in  all  civil  actions  should  be  applied  to  the  pro- 
ceedings. The  usual  care  should  be  takan  in  the  action  as  to 
service  on  defendants  and  the  making  of  necessary  parties  to 
the  action.  Attention  is  directed  to  the  first  chapter  of  this 
work,  where  will  be  found  a  full  discussion  of  the  manner  of 
service  on  infants,  the  appointment  of  guardians  ad  litem, 
the  answers  of  the  same,  service  of  summons  on  adults  and 
infants  of  the  county  and  in  other  counties  of  the  State,  the 
procedure  in  case  of  insana  defendants,  the  appointment  of 
trustees  for  insane  defendants  and  ths  answers  of  such  in- 
sane defendants  by  trustee  appointed  by  the  court,  service  of 
summons  upon  non-resident  defendants  whose  place  of  resi- 
dence is  known  and  those  whose  place  of  residence  is  un- 
known, service  of  copy  of  the  petition  on  non-residents  of  the 
State  and  the  affidavits  and  orders  of  the  court  therein.42 

Sec.  278.     Notice  of  time  of  place  and  sale  of  real  estate  and 
amount  for  which  the  same  can  be  sold. 

Notice  of  the  time  and  place  of  the  sab  of  the  real  estate 
assigned  must  be  given  by  advertising  in  some  newspaper  of 
general  circulation  in  the  county  in  which  the  real  estate  is 
situatad  for  four  consecutive  weeks,  and  said  real  estate  can 
not  be  sold  for  less  than  two-thirds  of  the  appraised  value 
thereof,  being  subject  to  reappraisement  as  upon  executions 
at  law.43 

Sec.  279.  When  the  court  may  fix  the  amount  at  which  the 
real  estate  may  be  sold. 
When  real  estate,  taken  on  execution  and  appraised  and 
twice  advertised  for  sale,  remains  unsold  for  want  of  bidders, 
the  court  from  which  the  execution  issued  must,  on  motion  of 
tha  plaintiff,  set  aside  such  appraisement  and  order  a  new 
appraisement  to  be  made,  or  set  aside  such  appraisement  and 
award  a  new  execution  to  issue,  as  the  case  may  require;  and 
when  such  real  estal  s  or  any  part  thereof  has  been  three  times 
appraised   as  aforesaid    and    thereafter  twice   advertised    and 

42  ?,.,■  No.  202  n  srq.  fc  r  complete  »» Gen'l     Code,     §11110     (K.     S. 

formsof  all  pleadings, writs, process-  §  6350a).     See  No.  220  for  form  of 

es,  judgments,  decrees,  orders  of  tin-  notice. 
court  and  deeds  in  *uch  actions. 


321     SALE  OF  REAL  ESTATE  FOR  BENEFIT  OF  CREDITORS.   §  280 

offered  for  sale,  and  then  remains  unsold  for  want,  of  bidders, 
the  court  may  direct  th  *  amount  for  which  the  same  shall  be 
sold.44 

And  the  sale  should  be  made  at  the  court  house  or  such  other 
place  as  the  court  may  order.4" 

Sec.  280.     Manner  in  which  real  estate  may  be  sold  at  private 
sale. 

Whenever  the  court  is  satisfied  that  it  would  be  for  the 
advantage  of  the  creditors  of  the  assignor  to  sell  any  part  or 
all  of  the  real  estate  or  personal  property  assigned  at  private 
sale,  the  court  may  authorize  the  assignee  or  trustee  to  thus 
sell  the  same,  either  for  cash  or  upon  such  other  terms  as  the 
court  may  order ;  but  such  real  estate  can  in  no  case  be  sold 
for  less  than  two-thirds  of  its  appraised  value;  nor  shall  any 
personal  property  be  sold  for  less  than  two-thirds  of  such 
appraisement,  unless  the  court,  upon  good  cause  shown,  orders 
the  assignee  to  sell  the  same  for  a  less  amount;  provided,  how- 
ever, that  the  limitation  as  to  the  price  for  which  the  real 
estate  shall  bi  sold,  shall  not  apply  to  real  estate  situate  out 
of  this  State.46 

281.     Manner  in  which  real  estate  may  be  sold  at  public  auction 
— Enforcement  of  contracts. 

Should  any  property  ordered  to  be  sold  by  the  court  at 
private  sale  be  not  sold  within  the  time  prascribed,  then  the 
court  is  required  to  order  the  same  to  be  sold  at  public  auc- 
tion, in  the  same  manner  as  though  a  private  sale  had  not  been 
ordered ;  and  the  assignee  may  also,  with  the  approval  of  the 
court,  complete  and  enforce  all  sales  of  the  real  estate  made  by 
the  assignor.47 


■  -■ 


282.     Procedure  as  to  wife's  dower — Sales  of  mortgaged  prop- 
erty. 

Whan  real  estate  is  to  be  sold  as  herein  provided,  the  hus- 
band or  wife  of  the  assignor  may  be  made  a  party  and  he  or 

44  den'l     Code.     §  11710      ( R.     S.  ing  for  procedure  to  soil  real  estate 

§5416).      The    Complete    Ohio    Pro-  by  the  assignee  at  private  sale, 

bate   Practice,  Vol.    2,    §  1626.  «  Gen'l  Code,  §  1111!)  and  §11120 

45Gen'l     Code.     §11696      (R.     S.  (R.  S.   §6350d).     See  No.  218  and 

g  5404).  following  for  forms  of  procedure  for 

46  Gen'l     Code,     §  11118      (R.     S.  sale  of  real  estate  at  public  auction. 
§  6350c).     See  No.  202  and  follow- 


§§  283,  284  MERWINE    ON    REAL    ACTIONS.  322 

she  may  file  an  answer  in  the  court  to  have  said  real  estate 
sold  free  of  his  or  her  contingent  right  of  dower  and  to  allow 
him  or  her  in  lieu  thereof  out  of  the  proceeds  of  the  sale,  such 
sum  of  money  as  the  court  deems  the  just  and  reasonable  value 
of  his  or  her  contingent  dower  interest  therein;  and  such 
answer  shall  have  the  fores  and  effect  and  shall  be  taken  and 
held  to  be  in  all  respects  as  a  deed  of  release  of  her  contingent 
dower  interest  therein.48 

Sec.  283.  Procedure  where  wife  joins  in  mortgage  or  mort- 
gage is  for  purchase  money. 

"Where  the  assignor  and  his  wife  have  jointly  executed  a  mort- 
gage upon  any  of  the  real  estate  assigned,  where  the  assignor 
alone  has  executed  a  mortgage  upon  any  of  said  real  estate, 
as  security  for  the  payment  of  the  purchase  money,  or  a  part 
thereof,  the  court  must  order  the  sale  of  the  same  free  from 
the  contingent  right  of  dower  of  such  wife,  and  must  find  and 
determine  the  just  and  reasonable  Value  of  her  contingent 
dower  interests  in  the  balance  of  the  proceeds  of  such  sale  after 
the  payment  of  such  encumbrances  as  precluded  her  right  of 
dower  therein.49 

Sec.  284.  Manner  of  payment  of  liens — Questions  of  dower, 
homestead,  completion  of  real  contracts  of  assignor  and 
application  of  proceeds  of  sale. 

In  all  such  proceedings  to  sell  the  real  estate  of  an  assignor 
to  pay  his  debts,  the  probate  court  is  required  to  order  the 
payment  of  all  incumbrances  and  liens  upon  any  of  the  prop- 
erty sold  or  rights  and  credits  collected  out  of  the  proceeds 
thereof,  according  to  priority ;  provided,  that  the  assignee  may, 
in  all  cases,  where  the  real  estate  to  be  sold,  or  which  may  have 
been  contracted  to  be  sold  by  the  assignor  prior  to  the  as- 
signment is  encumbered  with  liens,  or  where  any  question  in 
regard  to  the  title  or  the  dower  estate  of  the  wife  or  widow 
of  the  assignor  requires  a  decree  to  settle  the  same,  commence 
a  civil  action  therefor  in  Ihe  court  of  common  pleas  or  the 
probate   court   of  the  proper  county,    making   all    persons  in 

♦ROen'l  Code,     §11123      (K.  S.  answer    <>f    wife    consenting    to    sale 

§(i350f).  and    asking    to    be    endowed   of    pro- 

oGen'l  (ode     §11124      (R.  S.  ceeds  of  sale. 

§  6350g ) .  See  No.  204  for  form  for 


323     SALE  OF  REAL  ESTATE  FOR  BENEFIT  OF  CREDITORS.   §  285 

interest,  including  the  wife  or  widow  of  the  assignor,  parties 
to  such  proceeding;  and  upon  hearing,  the  court  must  order  a 
sale  of  the  premises,  or  the  completion  of  the  contracts  of  sale 
so  made  by  the  assignor,  the  payment  of  incumbrances  and  the 
contingent  dower  interest  of  the  wife  or  widow,  subject  to  the 
proviso  hereinafter  contained,  and  determine  the  question  in- 
volved in  regard  to  th?  title  of  the  same ;  and  the  proceeds  of  all 
the  real  estate  so  sold  after  payment  of  (liens)  heirs  and  in- 
cumbrances and  the  contingent  dower  rights  and  interest  of 
such  wife  or  widow,  as  ordered  by  such  court,  must  be  reported 
to  the  court  by  the  assignee,  and  disposed  of  as  provided  in 
this  chapter,  provided  that  the  provisions  of  R.  S.  §  6350  in 
relation  to  the  wife  of  the  assignor,  as  a  party  to  the  proceedings 
thereunder  and  her  rights  by  virtue  thereof,  and  also  the  pro- 
visions of  such  section  as  to  ordering  property  sold  at  private 
sale  and  upon  terms  of  credit,  must  apply  to  proceedings  under 
this  section ;  but  nothing  in  this  section  nor  R.  S.  §  6350  can  be 
f-o  construed  as  in  any  way  to  impair  the  right  of  homestead 
exemption  or  the  right  of  an  allowance  in  lieu  of  homestead 
exemption  or  the  mode  provided  by  law  for  enforcing  such 
rights.  And  provided  further,  that  nothing  in  this  section  or 
in  this  chapter  can  be  so  construed  as  in  any  way  to  take 
away  or  limit' the  jurisdiction  of  any  court  of  record  in  which 
any  action  to  foreclose  a  mortgage,  to  quiet  title,  or  in  any 
way  affecting  the  title  or  possession  of  all  or  any  property  of 
the  real  estate  assigned  is  pending  at  the  date  of  the  assign- 
ment, but  in  said  action  the  assignee  may  be  made  a  party, 
with  right  to  defend,  and  to  have  such  decrees,  orders  or  judg- 
ments made  as  may  be  necessary  for  the  proper  administration 
of  his  trust  in  any  surplus  remaining  after  payment  of  liens 
thereon  which  have  been  asserted  in  said  pending  action.50 

Sec.  285.     The  order  to  release  mortgages  or  liens  in  recorder's 
office. 

When  said  action  is  determined  by  the  probate  court,  the 
judge  thereof  is  required  to  make  the  necessary  orders  for  an 
entry  of  release  and  satisfaction  of  all  mortgages  and  other 
liens  upon  said  real  estate,  and  is  required  to  enter  such  release 

RoGen'l  Code,  §11120  (R.  S.  1  C.  C.  61;  Blandy  v.  Benedict.  43 
§6351).  See  also  Clapp  v.  Banking  0.  S.  295;  Bell  v.Dudoit.  40  < ).  S. 
Co.,  50  O.  S.  528;  Mannix  v.  Elder,       330;  Scott  v.  Dunn,  2G  O.  S.  63. 


§§  286,  287  MERWLNE   ON    REAL.   ACTIONS.  324 

in  satisfaction,  together  with  a  memorandum  of  the  title  of  the 
case,  the  character  of  the  proceedings  and  the  volume  and  page 
of  record,  where  recorded ;  upon  the  record  of  such  mortgage, 
judgment  or  other  lien  in  the  office  where  the  same  appear  as 
matter  of  record,  and  he  is  required  to  tax  in  his  cost  bill  the 
fee  provided  by  law  for  entering  such  release  and  satisfaction, 
and  also  a  fee  of  twenty-five  cents  to  himself  for  such  entry.51 

Sec.  286.     Procedure  where  town  lots  are  to  be  laid  out. 

When  any  assignee  or  trustee  has  commenced  a  civil  action 
under  the  provisions  of  R.  S.  §  6351  in  the  common  pleas 
court  or  probate  court  of  the  proper  county,  making 
all  persons  in  interest  parties  to  such  proceedings; 
and  at  the  time  appointed  for  the  hearing  of  the 
petition,  and  the  court  being  satisfied  that  all  the  parties  in 
interest  have  been  duly  notified  of  the  pendency  of  said  peti- 
tion, according  to  law,  and  that  such  real  estate  ought  to  be 
sold;  and  if  such  petition  seeks  to  have  the  land  or  any  part 
thereof  laid  out  into  town  lots,  and  the  court  finds  it  will  be 
to  the  advantage  of  all  parties  in  interest  to  have  the  same 
done,  the  court  is  also  required  to  authorize  the  survey  and 
platting  of  the  land  described  in  the  petition,  and  if  the  court 
approve  the  survey  and  plat  made  for  that  purpose  the  court 
is  also  required  to  authorize  the  assignee  or  trustee,  on  behalf 
of  all  the  parties  in  interest,  to  sign,  seal  and  acknowledge  the 
plat  in  that  behalf  for  record  according  to  law.52 

Sec.  287.  Confirmation  of  sale  and  order  for  deed — Manner 
in  which  deferred .  payments  are  secured  and  notes  and 
mortgage  for  deferred  payments  may  be  sold. 

A  report  of  nil  sales  of  real  estate  made  as  provided  in  this 
chapter  must  be  returned  to  the  court  within  the  time  pre- 
scribed, and  the  court,  after  having  carefully  examined  such 
return,  and  being  fully  satisfied  that  the  sale  has  in  all  respects 
been  legally  made,  must  confirm  th.3  sale  and  order  the  as- 
signee or  trustee  to  make  a  deed  to  the  purchaser  for  the  real 
estate  sold;  and  may  in  the  order  requira  that  before  the  de- 
livery of  such  deed  the  deferred  installments  of  the  purchase 
money  shall  1><'  secured  by  mortgags.     Provided,  that  if  after 

si  Con'l     Code,     §  10783      (II.     S.  m  Gen'l     Code,     §11133      ( R.     S. 

§6145).  §«351a). 


325 


SALE   OF   REAL   ESTATE   FOR    BENEFIT   OF   CREDITORS.       §  287 


such  sale  the  purchaser  offers  to  pay  the  full  amount  of  the 
purchase  money  in  cash,  the  court  may  order  that  the  same 
be  accepted  if  bast  for  the  interests  of  the  creditors  of  the 
assignor,  and  direct  its  distribution;  and  the  court  may  order 
the  sale  by  the  assignee  or  trustee,  without  recourse,  of  all  or 
any  of  the  notes  taken  for  defsrred  payments,  if  best  for  the 
interests  of  the  creditors  of  the  assignor,  at  not  les.-;  than  their 
face  value  with  accrued  interest,  and  direct  the  distribution 
of  the  procseds.53 

ssGen'l     Code     §11121      (R.     S.  sold   at  private   sale.      See   No.   222 

§(>350e).     See  No.  216  for  form  for  for  form  of  deed   when   real   estate 

entry    in    such    case.      See    No.    217  sold  at  public  sale, 
for  form  for  deed  when  real  estate 


FORMS. 


FORMS  FOR  SALE  OF  REAL  ESTATE  AT  PRIVATE  AND 
PUBLIC  SALE  BY  AN  ASSIGNEE  FOR  BENEFIT 

OF  CREDITORS. 


FORMS 
200. 
201. 
202. 


203. 
204. 
205. 
206. 


207. 
208. 

209. 

210. 
211. 


The   deed   of   assignment. 

Form  for  acceptance  of  trust. 

The  petition  for  sale  of  real 
estate  of  an  assignee  for 
the  benefit  of  creditors. 

Precipe  for  summons. 

Answer  of  wife  of  assignor. 

Answer  of  an  assignor. 

The  summons  for  defendant 
in  sale  of  real  estate  by 
an  assignee  for  the  benefit 
of  creditors. 

The  sheriff's  return  of  his  pro- 
ceedings  under    said  writ. 

Answer  and  cross-petition  of 
a  defendant  setting  up 
notes  secured  by  mortgage. 

Cross-petition  of  a  trustee 
setting  up  mortgage  lien. 

Decree   and  order   of   sale. 

Affidavit  for  authority  to  sell 
real  estate  at  private  sale. 


FORMS 
212. 

213. 

214. 


215. 
216. 

217. 


218. 

219. 

220. 
221. 

222. 


Order  for  sale  of  real  estate 
at  private  sale. 

Order  of  sale  from  the  pro- 
bate court  to  the  assignee. 

The  assignee's  return  of  his 
proceedings  under  the  or- 
der  of    sale. 

Assignee's  report  of  sa^e. 

Confirmation  of  private  sale 
of    assignee. 

Form  for  deed  of  assignee  in 
sale  of  real  estate  at  pri- 
vate  sale. 

Order  of  assignee  to  sell  at 
public   auction. 

Assignee's  report  of  his  pro- 
ceedings  under   the   writ. 

Legal   notice  of  sale. 

Decree  and  order  of  court  con- 
firming  sale. 

Form  of  assignee's  deed  at 
public  auction. 


No.  200.     The  deed  of  assignment. 

Kxow   aix   Men   ry    These   Presents.   That    whereas    I,   G.   B.,   of 

the  City  of ,  County  of and  State  of  Ohio,  am  indebted 

to  divers  persons  in  various  sums  of  money  which  I  am  now  unable 
to  pay  in  full;   and 

Whebeas  I,  the  said  G.  B.,  am  desirous  of  conveying  all  my  property 
for  the  benefit  of  my  creditors,  without  any  preference  or  priority. 

Now  therefore  I,  the  said  G.  B.,  in  consideration  of  the  premises 
and  of  one  dollar  to  me  paid  by  C.  B.,  the  receipt  of  which  1  hereby 
acknowledge,  have  granted,  bargained,  sold,  assigned,  transferred  and 
set  over,  and  by  these  presents  do  grant,  bargain,  sell,  assign,  transfer 
and  set  over  unto  the  said  C.  B.,  all  and  singular  the  lands,  tenements, 
hereditaments  and   appurtenances,   goods,   chattels,  stocks,   promissory 

326 


327  FOKMS. 

notes,  debts,  choses  in  action  belonging  to  me,  wherever  the  same  may 
be  situated,  except  such  property  as  is  by  law  exempt  from  execution. 

To  Have  and  to  Hold  the  same  unto  the  said  C.  B.  in  trust,  to 
sell  and  dispose  of  said  real  estate  and  personal  property,  and  to 
collect,  sue  for,  and  demand,  receive  and  recover,  all  such  sums  of 
money  as  may  be,  or  become  due,  owing  and  payable  on  sard  promissory 
notes,  debts,  choses  in  action,  evidences  of  debt,  claims  and  demands 
and  their  interest,  to  apply  the  proceeds  arising  from  the  same  as 
follows: 

First.  To  pay  the  lawful  costs  and  expenses  of  executing  the 
trust  hereby  created,  including  reasonable  attorney  fees  for  legal 
advice  in  regard  to  the  said  trust,  and  for  drawing  this  deed  of  trust. 

Second.  To  pay  to  each  and  all  my  creditors  the  full  sums  that 
may  be  due  and  owing  to  them  by  me;  provided,  however,  that  if 
there  shall  not  be  sufficient  funds  with  which  to  pay  all  my  said  debts, 
then  the  said  debts  are  to  be  paid  ratably  and  in  proportion. 

Third.  If  the  proceeds  aforesaid  shall  be  more  than  sufficient  to 
pay  and  satisfy  every  one  of  my  creditors,  then  to  pay  and  return 
to  me  the  balance  that  may  be  left,  if  any,  after  paying  all  my  creditors 
as  aforesaid. 

Fourth.  And  I  do  hereby  nominate,  constitute  and  appoint  the  said 
C.  B.  my  true  and  lawful  attorney  irrevocably  in  my  name,  or  other- 
wise, for  the  purposes  aforesaid,  to  execute  the  trust  hereby  created, 
giving  and  granting  unto  my  said  attorney  full  power  and  authority 
to  do  and  perform  every  act,  deed  and  requisite  necessary  in  the  prem- 
ises as  fully  to  all  intents  and  purposes  as  I  might  or  could  do  if  this 
assignment  had  not  been  made;  with  full  power  of  substitution  and 
revocation,  hereby  ratifying  and  confirming  all  that  my  said  attorney, 
or  his  substitute  may  lawfully  do,  or  cause  to  be  done  in  the  premises 
by  virtue  thereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 
day  of  ,  19 . 


Signed,  sealed  and  acknowledged  in  presence  of 


State  of  Ohio,  County,  ss.: 

Be  it  Remembered  that  on  this  day  of  ,  19 , 

before  me,  the  subscriber,  a  Notary  Public  within  and  for  said  county, 
personally  came  G.  B.,  the  grantor  in  the  foregoing  deed,  and  acknowl- 
edged the  signing  and  sealing  thereof  to  be  his  voluntary  act  and 
deed  for  the  uses  and  purposes  therein  mentioned. 


In  Testimony  Whereof,  I  have  hereunto  subscribed  my  name  and 
affixed  my  notarial  seal  on  the  day  and  year  last  aforesaid. 


Notary  Public,  County,  Ohio. 


MERWINE   ON    REAL    ACTIONS.  328 

No.  201.     Form  for  acceptance  of  trust. 

I    hereby   accept   the   trust   created   by    the   above   instrument,   and 
agree  faithfully  to  perform  the  same. 

C.  B. 

Dated  at  ,  ,  Ohio,  this  day   of  , 

19 . 

No.  202.     The  petition  for  sale  of  real  estate  by  an  assignee 
for  the  benefit  of  creditors. 

Probate  Court,  County,  Ohio. 

C.   B.,  assignee   in  trust  for 
the  benefit  of  the  creditors 
of  G.  B., 

Plaintiff, 

vs.  No. . 

G.  B.,  J.  B.,  his  wife,  L.  W.  S., 
and  C.  M.  T.,  as  executors  of  the 
estate  of  S.  M.,  deceased,  J.  N.  C. 
and  F.  J., 

Defendants. 

Petition  to  Sell  Real  Estate. 

The  plaintiff,  C.  B.,  assignee  in  trust  for  the  benefit  of  the  creditors 

of   G.   B.,   one   of   the   defendants,    says    that  on    the  day   of 

.t  19 ,  said  G.  B.  made  an  assignment  in  trust  for  the  benefit 

of  all  his  creditors,  of  all  his  property  not  exempt  by  law  from  execu- 
tion, to  the  said  C.  B.,  which  assignment,  with  plaintiff's  bond  as 
said  assignee,  was  filed  and  approved  according  to  law,  with  the  Probate 

Court  Clerk,  County,  Ohio,  on  the  day  of  , 

19 .  And  that  since  that  time  plaintiff  has  continued  in  the  dis- 
charge of  his  duty  as  such  assignee. 

Plaintiff  alleges  that  among  the  assets  of  said  assignment  is  certain 
real  estate,  to-wit:      (Here  describe  it.) 

The  defendants  L.  W.  S.  and  C.  M.  T.,  as  executors  of  the  estate 
of  S.  M.,  deceased,  J.  N.  C.  and  F.  J.,  claim  some  liens  or  interest 
upon  said  premises,  and  plaintiff  asks  that  they  may  be  made  parties 
defendant  herein,  and  required  to  set  forth  the  nature  and  amounts 
thereof,  or  be  forever  barred  from  asserting  the  same. 

Plaintiff  therefore  prays  that  he  be  ordered  to  sell  said  real  estate 
herein  described;  that  said  liens  be  considered  by  the  court,  and  if 
found  to  be  valid  and  subsisting,  their  respective  priority  be  deter- 
mined, and  their  payment  ordered  out  of  the  proceeds  of  said  sale, 
and  also  that  the  rights  of  said  wife  in  said  real  estate  be  considered 
and   determined,  and   that  the  court  issue   its   orders  to  the   plaintiff 

accordingly.  • 

Attorneys  for  Plaintiff. 

The  petition  should  be  verified  as  in  other  cases. 


329  KOKMS. 

No.  203.     Precipe  for  summons    and  waiver  of  summons  and 
entry  of  appearance. 

To  the  Prtbate  Court  of  said  County: 

Issue  summons  for  the  defendants,  L.  W.  S.  and  C.  M.  T.,  as  execu- 
tors of  S.  M.,  deceased,  and  F.  J.,  directed  to  the  sheriff  of  

County,  Ohio  returnable  according  to  law. 

Indorse  thereon,  "sale  of  real  estate  by  C.  B.,  as  assignee  in  trust 
for  the  benefit  of  the  creditors  of  G.  B." 

Waiver  of  Summons  and  Entry  of  Appearance. 

We  hereby  waive  the  issuing  and  service  of  summons  upon  us, 
and  enter  our  appearance  to  the  within  action. 

J.  N.  C, 
G.  B., 
J.  B. 

No.  204.     Answer  of  J.  B.,  wife  of  assignor. 

Probate  Court.  County,  Ohio. 

(Same  caption  as  in  petition.) 

The  said  J.  B.,  wife  of  said  G.  B.,  hereby  consents  to  the  sale  of 
said  real  estate  prayed  for  in  plaintiff's  petition  in  this  case,  and  asks 
the  court  to  have  said  real  estate  sold  free  of  her  contingent  right 
of  dower  therein,  and  to  allow  her  in  lieu  thereof,  such  sum  of  money 
out  of  the  proceeds  of  such  sale  as  the  court  may  deem  to  be  the 
reasonable  value  of  her  contingent  dower  interest  in  said  real  estate. 


This  answer  verified  as  in  other  cases. 

No.  205.     Answer  of  an  assignor. 

Probate  Court, County,  Ohio. 

(Same  caption  as  in  petition.) 

And  now  comes  G.  B.,  one  of  the  defendants,  and  says  that  he  is 
the  assignor  mentioned  in  this  action,  and  consents  to  the  sale  of  said 
real  estate  as  prayed  for  by  his  assignee  in  his  petition  in  the  above 
entitled  cause. 

This  answer  should  be  verified  as  in  other  actions. 

No.  206.     The  summons  for  defendants  in  sale  of  real  estate 
by  an  assignee  for  the  benefit  of  creditors. 

State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  the  County  of  : 

You  are  commanded  to  notify  L.  W.  S.  and  C.  M.  T.,  as  executors 
of  S.  M.,  deceased,  and  F.  J.,  defendants,  that  they  have  been  sued  by 
C.  B.,  as  assignee  in  trust   for  the  benefit  of  the  creditors  of  G.  B., 


MERWINE    ON    REAL    ACTIONS.  ^30 

plaintiff  in  the  Probate  Court  of  County,  and  that  unless  they 

answer  by  the  day  of  ,  A.  D.  19 ,  the  petition  of 

the  said  C.  B.,  as  such  assignee  aforesaid,  against  them  filed*  in  said 
court,  such  petition  will  be  taken  as  true  and  judgment  rendered  ac- 
cordingly.    You  will  make  due  return  of  this  summons  on  the  

day  of  ,  A.  D.  19 . 

In  Testimony  Whereof.  I   have  hereunto  set  my  hand  and  affixed 
the  seal  of  the  court  at  ,  this day  of ,  19 . 


Probate  Judge. 

207.     The  sheriff's  return  of  his  proceedings  under  said  writ. 

The   State    of   Ohio,   County,    ss.: 


Received  this  writ  on  the day  of ,  19 ,  at 


o'clock  m.,  and  on  the  day  of  ,  19 ,  I  served 

the  same   by   leaving  a   true   copy   thereof,  with  all  the   indorsements 
thereon,  at  the  usual  place  of  residence  of  each  of  the  within  named, 

L.  W.  S.,  C.  M.  T.  and  F.  J.  , 

Sheriff  of County,  Ohio. 

No.  208.     Answer  and  cross-petition  of  L.  W.  S.  and  C.  M.  T., 
as  executors  of  the  estate  of  S.  M.,  deceased. 

Probate  Court,  County,  Ohio. 

( Same  caption  as  in  petition. ) 

For  a  cross-petition   herein  said   executors  say: 

1.     That  on  the day  of  ,  A.  D.   19 ,  G.  B.  had 

delivered  to  one  J.  N.  C.  his  certain  promissory  note  for  the  sum   of 

$ ,    a   copy   of   which,    with    all   the   indorsements   thereon,    is   as 

follows: 

" ,  Ohio,  ,  19 . 


" years   after  date,   for   value   received,   1    promise    to   pay   J. 

N.   C,    or   order,    $ with    interest   thereon   from   date   until   paid 

at  the  rate  of  per  cent,  per  annum,  payable  semi-annually. 

"G.  B." 

Said  note  is  credited  and   indorsed  as   follows:      "Interest   paid   on 

the  within  note  to  the  day  of  .  19 . 

■'Pay  estate  of  S.   M.  without  recourse  on   me." 

2.     The  said  executors  say  that  to  secure  the  payment  of  the  note 
above  set  forth  herein,   the  defendant,  G.  B.,  and  his  wife,  C.   B.,  on 

the day  of ,  19 ,  made  their  mortgage  deed  to  said 

J.  N.  C,  and  thereby  conveyed  to  said  J.  N.  C,  his  heirs  and  assigns, 
the  following  described  real  estate,  and  being  the  same  real  estate 
described  in  the  petition,  to-wit:  (Here  describe  it),  which  said  mort- 
gage deed  was  in  substance  that  if  the  said  G.  B.  would  well  and 
truly  pay  said  sum  of  money  according  to  the  tenor  and  effect  of 
said  note,  then  said  mortgage  deed  was  to  be  in  no  force  and  effect. 


331  FOKMS. 

Said  mortgage  deed  was,  on  the  -day  of  -,  19- , 

at  o'clock m.,  delivered  to  the  recorder  of County, 

Ohio,   for   record^   and  was,  on   the  day   of  —    19 -, 

duly  recorded  in  County  Record  of  Mortgages,  ii>  Vol.  , 

pages  and . 

Said   executors   further   say    that   said   mortgage   deed  has   become 

absolute;  that  there  is  due  thereon  and  unpaid  the  sum  of  $ and 

interest    thereon    from    the   day   of   ,    19 ,   at   the 

rate  of  per  cent,   per  annum,  payable  semi-annually. 

Said   executors    say    that   said   note    is    wholly    unpaid;    that   there 

is  due  and  owing  thereon  the  sum  of  $ ,  with   interest  at  

per   cent,    from    the  day   of  ,    19 ,   and   that  said 

note  and  said  mortgage  were  duly  transferred  and  assigned  by  said 
J.  N.  C.  to  said  executors,  and  that  said  executors  are  the  owners  and 
holders  of  said  note  and  said  mortgage. 

Said  executors  therefore  pray  that  in  case  said  property  is  sold, 
the  said  sum  of  money  due  and  payable  to  them  on  said  note  and 
said  mortgage  be  paid  to  them  out  of  the  proceeds  of  such  sale  accord- 
ing to  the  priority  of  lien  thereof. 

L.  W.  S.  and  C.  M.  T., 
As  Executors  of  the  estate  of  8.  M.,  deceased. 

This  cross-petition  verified  as  in  other  cases. 

No.  209.     Cross-petition  of  W.  H.  A.,  trustee, 

Probate  Court,  County,  Ohio. 

(Same  caption  as  in  petition.) 

Now  comes  W.  H.  A.,  trustee,  and  upon  his  own  motion  is  made 
a  party  defendant  in  this  suit,  and  by  leave  of  the  court,  files  herein 

his  cross-petition  and  says  that  on  the  day  of ,  19 , 

said  defendant  G.  B.,  made,  executed  and  delivered  to  the  defendant 
J!  N.  C.  his  promissory  note,  and  thereby  promised  to  pay  to  the  said 

J.  N.  C.  in years  from  said  date  the  sum  of  % ,  with  interest 

at  the  rate  of  per  cent,  per  annum,  payable  semi-annually;    that 

afterwards,  to-wit:     on  or  about  the  clay  of  ,  19 , 

before  said  note  became  due,  the  said  J.  N.  C,  by  a  written  indorse- 
ment on  the  back  of  said  note,  transferred  and  assigned  to  this  de- 
fendant as  trustee,  the  said  promissory  note,  and  ever  since  the  said 
date  defendant  has  been  the  legal  owner  and  holder  of  said  note.     The 

interest  on   said   note   has   been   paid   in   full    to   the  day   of 

,  19 ,  and  there  is  due  to  this  defendant  from  the  said  G. 

B.  upon  said  note  the  sum  of  % ,  with  interest  thereon  at  

per  cent,  per  annum,  payable  semi-annually  from  the  day  of 

,  19 . 

On   the  day  of  ,    19 1   to   secure   the   payment 

of  the  above  described  note,  the  said  defendants  G.  B.  and  J.  B.,  his 
wife,  made,  executed  and  delivered  to  the  said  J.  N.  C.  their  mortgage 
deed,  thereby  conveying  to  him,  his  heirs  and  assigns,  the  real  estate 
described  in  said  petition.     (Here  describe  it.) 


MERWINE    ON    REAL    ACTIONS.  332 

The  condition  contained  in  said  mortgage  was  in  substance  that 
if  the  said  G.  B.  should  pay  to  the  said  J.  C,  when  the  same  became 
due,  the  above  described  note  and  the  interest  thereon  when  and  as 
the  same  became  due  and  payable,  then  said  mortgage  should  be  void, 
otherwise  to  be  and  remain  in  full  force  and  virtue  in  law. 

The  said  mortgage  was  filed  with  the  recorder  of  County, 

Ohio,   for  record,  on  the day  of  ,   19 ,  at  

o'clock m..  and  was  afterwards  by  him  recorded  in  Vol.  ,  pages 

and  ,  County,  Ohio,  records.     Since  the  date  of  the 

said  filing  of  said  mortgage,  it  has  constituted  a  valid  and  subsisting 
lien  upon  the  real  estate  described  in  plaintiff's  petition. 

On  or  about  the  day  of  ,  19 ,  before  said  note 

became  due,  the  said  J.  N.  C.  for  a  valuable  consideration,  transferred 
and  assigned  the  said  mortgage  to  this  defendant  as  trustee,  and  this 
defendant  is  now  the  legal  owner  and  holder  of  the  same,  and  entitled 
to  receive  payment  of  the  same  out  of  the  proceeds  of  any  sale  made 
of  the  real  estate. 

Wherefore  this  defendant  prays  that  in  the  event  of  the  sale  of 
said  real  estate  by  order  of  the  court  herein,  thai;  his  rights  will  be 
protected,  and  that  out  of  the  proceeds  of  any  sale  that  may  be  made, 
he  shall  receive  payment  of  the  above  described:  note  and  mortgage, 
and  for  all  other  and  proper  relief  to  which  he  may  be  entitled. 


Attorney  for  W.  H.  A.,  trustee. 
This  cross-petition  verified  as  in  other  cases. 

No.  210.     Decree  and  order  of  sale. 

Probate  Court,  County,  Ohio. 

(Same  caption  as  in  petition.) 

This  cause  came  on  for  hearing  upon  plaintiff's  petition,  the  answers 
and  cross-petitions  of  the  defendants,  G.  B.,  J.  B.,  L.  W.  S.,  C.  M.  T. 
as  executors  of  S.  M.,  deceased,  W.  H.  A.,  trustee,  being  the  owner 
of  the  note  and  mortgage  made  by  said  G.  B.  and  wife  to  the  defendant 
J.  N.  C,  F.  J.  and  the  evidence,  and  was  argued  by  counsel  and  sub- 
mitted to  the  court,  and  on  due  consideration  whereof  the  court  finds 
that  all  proper  and  necessary  parties  are  now  in  court;  that  said  G.  B. 
made  an  assignment  for  the  benefit  of  his  creditors,  and  that  said  C. 
B.  filed  a  deed  of  assignment  in  the  Probate  Court  herein,  gave  bond, 
and  has  been  discharging  his  duties  as  such  assignee  as  set  forth 
in  said  petition. 

The  court  further  finds  that  the  averments  of  the  plaintiff  are  true 
as  set  forth  in  his  petition. 

It  is  therefore  ordered  by  the  court  that  said  plaintiff  sell,  as  upon 
execution,  the  real  estate  described  in  his  petition,  (Here  describe  it); 
and  that  said  lands  are  to  he  sold  free  from  the  contingent  right  of 
dower  of  the  said  J.  B. 

And  it  appearing  to  the  court  that  the  said  plaintiff  as  such  assignee, 
nas  heretofore  caused   said   real  estate  to  he  appraised   by  the  oaths 


333  FORMS. 

of  three  judicious,  disinterested  freeholders  of  the  vicinity  of  said 
premises,  it  is  ordered  by  the  court  that  no  further  appraisement  of 
the  same  be  made  by  the  plaintiff  herein. 

No.  211.     Affidavit  for  authority  to  sell  real  estate  at  private 
sale. 

Probate  Court,  County,  Ohio. 

(Same  caption  as  in  petition.) 

The  undersigned,  assignee  in  trust  for  the  benefit  of  the  creditors 
of  G.  B.,  respectively,  asks  for  an  order  authorizing  him  to  sell  at 
private  sale  and  for  cash,  at  not  less  than  the  appraised  value  thereof, 
the  real  estate  hereinbefore  ordered  to  be  sold  by  the  court  in  this 
proceeding. 

Said  authority  is  asked  for  the  following  reasons: 

1.  It  would  be  to  the  advantage  of  the  creditors  of  said  assignor. 

2.  It  will,  if  sold  at  private  sale,  enable  affiant  to  pay  the  debts 
of  said  assignor  without  further  delay. 

3.  The  appraised  value  is  all  that  said  premises  could  be  sold  for 
if  sold  at  public  sale. 

State  of  Ohio,  County,  ss.: 

C.  B.,  assignee,  being  duly  sworn,  says  that  the  various  matters 
set  forth  in  the  foregoing  application  and  affidavit  are  true  as  he 
verily  believes.  

Sworn  to  before  me  and  subscribed  in  my  presence  this  

day  of  ,  19 .  , 


Notary  Public,  County,  Ohio. 

No.  212.     Order  for  sale  of  real  estate  at  private  sale. 
Probate  Court,  County,  Ohio. 

(Same  caption  as  in  petition.) 

On  motion  of  C.  B.,  assignee,  and  it  appearing  to  the  court  that 
it  would  be  for  the  best  interests  of  the  creditors  of  said  assignor  to 
sell  the  real  estate  hereinbefore  ordered  by  the  court  to  be  sold  in 
this  action,  at  private  sale,  jt  is  ordered  by  ths  court  that  said  assignee 
proceed  to  sell  the  real  estate  hereinbefore  ordered  to  be  sold  by 
the  court  in  this  action,  at  private  sale  and  for  cash  in  hand,  and  that 
he  report  his  proceedings  herein  to  the  court  without  delay. 

No.  213.     Order  of  sale  from  the  probate  court  to  the  assignee. 

State  of  Ohio,  County,  ss. : 

To  C.  B.,  as  Assignee  of  the  estate  of  G.  B.,  Greeting: 

In  obedience  to  an  order  and  decree  of  the  Probate  Court  within 
and  for  said  county,  made  this  day  in  a  certain  cause  wherein  you, 
as  assignee  of  the  estate  of  G.  B.,  are  plaintiff  anil  G.  B.,  et  al  are 
defendants,  you  are  commanded  to  proceed  according  to  law  to  sell 
at  private  sale,  for  no  less  than  two-thirds  the  appraised  value  thereof, 


MEI.'WINE   ON    REAL    ACTIONS.  d34 

the  following  real  estate  described  as  follows:  (Here  insert  descrip- 
tion.) 

Said  lands  are  to  be  sold  free  from  the  contingent  right  of  dower 
of  the  defendant  J.  B. 

Said  sale  to  be  upon  the  following  terms,  cash  in  hand  on  day 
of  sale,  and  you  will  make  return  of  your  proceedings  to  this  court 
forthwith  upon  the  execution  of  this  order. 

Witness  my  signature  and  the  seal  of  said  Probafe  Court  at , 

Ohio,  this  day  of  ,  19 . 

No.  214.     The  assignee's  return  of  his  proceedings  under  said 
order  of  sale. 

To  the  Probate  Court  of  County,  Ohio: 

In  obedience  to  the  foregoing  order,  I  have  caused  the  same  to  be 
duly  executed  as  will  fully  appear  by  the  proceedings  herein  attached. 

Dated  the  day  of  ,  19 .  C.  B., 

As  Assignee  for  the  benefit  of  the  creditors  of  G.  B. 

No.  215.     Assignee's  report  of  sale 

In    obedience    to    the    within    order    I    sold    said    premises    on    the 

day  of  ,  19 ,  to  W.  D.  B.  for  the  sum  of  $ , 

said  sum  being  more  than  two-thirds  of  the  appraised  value  of  the  same. 

C.  B., 
As   Assignee   of   G.    B. 
Dated  day  of  ,   19 . 

State  of  Ohio,  County,  ss. : 

The  above  named  C.  B..  as  assignee  for  the  benefit  of  the  creditors 
of  G.  B.,  being  duly  sworn,  says  that  the  sale  above  reported  has  been 
made  after  diligent  endeavor  to  obtain  the  best  price  for  said  property; 
that  said  sale  is  for  the  highest  and  best  price  he  could  get  for 
.said   property.  C.  B. 

Sworn  to  before  me  and  signed  in  my  presence  this  day 

of  ,  19 -. 

Probate  Judge. 

No.  216.     Confirmation  of  private  sale  of  assignee. 
Probate  Court,  County,  Ohio. 

(Same  caption  as   in   petition.) 

This  day  came  C.  B.,  as  assignee  in  trust  for  the  benefit  of  the 
creditors  of  G.  B.,  and  produced  to  the  court  a  report  of  a  sale  made 
by  him  of  the  following  described  real  estate:  (Here  insert  descrip- 
tion. ) 

In  pursuance  of  an  order  hereinbefore  made,  and  it  appearing  on 
examination  that  said  sale  has,  in  all  respects  been  legally  made,  the 
same    is   approved   and    confirmed,   and    the   said    C.   B.    is  ordered   to 


335 


FORMS. 


execute  and  deliver  to  the  purchaser  at  said  sale  the  proper  deed  in 
fee  simple    to  the  real  estate  so  by  him  sold  as  aforesaid. 

It  is  further  ordered  by  the  court  that  said  assignee,  out  of  the 
proceeds  of  said  sale,  pay 

First,  the  costs  of  this  proceeding,  including  the  attorney's  fees 
t0  of  $ ,  and  to  the  assignee  herein  the  sum  of  $ . 

Second,  the  taxes  and  special  assessments  due  on  the day 

of  ,  19 ,  in  the  sum  of  $ . 

Third,  to  the  defendants  L.  W.  S.  and  C.  M.  T.,  executors  of  S. 
M.,  deceased,  the  sum  of  $ . 

Fourth,    that    said    assignee    pay    to    W.    H.    A.,    trustee     the    sum 

of  $ . 

Fifth,  that  said  assignee  pay  to  the  defendant  F.  J  the  sum 
of  $ . 

Sixth,   that   said   assignee   pay   to   the   defendant   J.   B.,   wife   of  G. 

B.,  the  sum  of  $ ,  being  the  full  amount  of  her  contingent  right 

of  dower  in  said  real  estate. 

Seventh,  that  said  assignee,  out  of  the  funds  arising  from  said 
sale,  pay  to  the  general  creditors  of  said  G.  B.  their  claims  so  presented 
to   him   for  allowance  and   allowed   by   him. 

Eight,  that  said  assignee  after  the  payment  of  all  claims,  costs 
and  expenses,  pay  any  balance  of  said  proceeds  of  said  sale  remaining 
in  his  hands  to  the  assignor  G.  B. 

And  it  is  further  ordered  by  the  court  that  this  court  cause  to 
be  entered  satisfaction  of  the  mortgages  herein  paid,  on  the  mortgage 
records  of  this  county. 

No.  217.     Form  for  deed  of  assignee  in  sale  of  real  estate  at 
private  sale. 

Know  all  Men  by  These  Presents,  that    whereas,  on  the  

day  of  ,  19 ,  G.  B.  made  an  assignment  of  all  his  property, 

including  the  real  estate  described  below,  in  trust  for  the  benefit  of 
his  creditors  to  G.  B.,  which  assignment  was  filed  in  the  office  of  the 

Probate  Court  of  the  County  of ,  State  of  Ohio,  on  the 

day  of  ,   19 ;    and 

Whereas,  said  assignee  was  ordered  by  said  Probate  Court  to  sell 
said  real  estate  described  below  at  private  sale;   and 

Whereas,  said  assignee  did   on  the day  of 19 

sell  the  same  at  private  sale  to  W.   D.  B.  for  $ ,  cash  in  hand, 

and  the  said  W.  D.  B.    having  complied  with  all  the  terms  of  said  sale, 

the  same  was  confirmed  by  said  court  on  the day  of  , 

19 1  and  the  said  assignee  was  ordered  to  execute  and  deliver  to  the 

said  purchaser  a  proper  deed  for  said  real  estate,  all  of  which  will 
more  fully  appear  by  reference  to  the  records  of  said  court  in  said 
matter   of  assignment,   in   case   No.   . 

Now  Therefore  I,  the  said  C.  B.,  as  assignee  a?,  aforesaid,  in 
consideration  of  the  premises  and  by  virtue  of  the  powers  in  me 
vested  by  law  and  the  order  of  said  court,  do  hereby  grant,  bargain, 


MEUWINE    ON    REAL    ACTIONS.  336 

sell  and  convey  unto  the  said  W.  D.  B.,  his  heirs  and  assigns  forever, 
the  following  described  real  estate:      (Here  describe  it.) 

To  Have  and  to  Hold  the  same  with  all  and  singular  the  ap- 
purtenances thereunto  belonging  unto  the  only  proper  use  of  the  said 
W.  D.  B.,  his  heirs  and  assigns  forever,  the  title  hereby  conveyed 
being  free  from  all  liens  on  the  same  and  of  all  debts  due  by  the 
said  assignor,  and  also  free  and  clear  of  the  contingent  right  of  dower 
in  said  premises  of  J.  B.,  wife  of  the  said  assignor,  G.  B. 

In  Witness  Whereof,  I,  as  said  assignee  as  aforesaid,  have  here- 
unto set  my  hand  and  seal  this  day  of  ,  A.  D.  19 . 

C.  B. 
As  Assignee  for  the  benefit  of  the  creditors  of  G.  B. 

Signed  and  sealed  in  presence  of  us 


State  of  Ohio,  County,  ss.: 

Be  it  remembered  that  on  the  day  of  ,   year  of 

our  Lord,  19 ,  before  me  the  subscriber,  a  Notary  Public  in  and  for 

said  county,  personally  came  C.  B.,  assignee  in  trust  for  the  benefit 
of  the  creditors  of  G.  B.,  the  grantor  in  the  foregoing  deed,  and  as 
such  assignee  acknowledged  the  signing  and  sealing  thereof  to  be 
his  voluntary  act  and  deed  for  the  uses  and  purposes  therein  mentioned. 

In  Testimony  Whereof,  I  have  hereunto  subscribed  my  name  and 
affixed  my  notarial   seal  on  the  day  and  year  last  aforesaid. 


Notary  Public, County,  0. 

No.  218.     Order  to  assignee  to  sell  at  public  auction. 

Probate  Court. 

The   State    of   Ohio,    County,    ss.: 

To  ,  Assignee  of  ,  Greeting: 

In  obedience  to  an  order  and  decree  of  the  Probate  Court  within 
and  for  said  county,  made  this  day  in  a  certain  cause  wherein  you, 
as  the  assignee  for  the  benefit  of  the  creditors  of  ,  are  com- 
plainant,   and   ■      et   al.   are   defendants,   a   true   copy   of   which 

order  and   decree   is  hereto  attached,  you   are   commanded   to  proceed 
according  to  law  to  sell   the  following  real  estate,   free   of   the   dower 

of  ,    wife   of ,   after   giving  weeks'    notice    by 

publication  in  some  newspaper    printed  and  of  general  circulation   in 
said  county,  to-wit:      (Here  insert  description  of  real  estate.) 

Said  sale  is  to  be  by  public  auction  at  the  door  of  the  court  house 
in  said  county  at  not  less  than  two-thirds  of  the  appraised  value  and 
for  cash. 

You  will  make  return  of  your  proceedings  immediately  after  execut- 
ing this   order. 

Witness    my    hand    and    the    seal    of    this    court    at   ,   Ohio, 

. 19 .  Probate  Judge. 


337  FORMS. 

No.  219.    Assignee 's  report  of  his  proceedings  under  said  writ 

In  obedience  to  the  within  order,  I  duly  advertised  the  real  estate 

therein  described  for  sale  for  consecutive  weeks  before  the  day 

of  sale   in   the  ,   a   newspaper   of  general   circulation    in   said 

county,  stating  in  said  notice  the  time,  place  and  terms  of  said  sale, 

and  on  the  day  of  ,  19 ,  I  attended  the  said  sale 

and  at  the  hour  of  ,  m.     I  offered  said   real  estate  for 

sale,   and   then    and   there   publicly   struck   off   and   sold   the   same   to 

for  the  sum  of  $ ,  they  being  the  highest  and  best  bidders 

and  that  being  more  than  two-thirds  of  the  appraised  value  thereof. 


Assignee  for  the  benefit  of  the  creditors  of 


No.  220.     Notice  of  sale,  and  proof  of  publication. 

In  pursuance  of  an  order  of  the  Probate  Court  of  County, 

Ohio,  I  will  offer  for  sale  at  the  door  of  the  court  house  in  

County,  Ohio,  on  the day  of ,  at o'clock,  m., 

the  following  described  real  estate:      (Here  describe  the  real  estate.) 

Said  premises  are  to  be  sold  free  from  the  dower  and  all  other 
liens  thereon,  appraised  at  $ .     Terms  of  sale,  cash. 


Assignee  for  the  benefit  of  the  creditors  of  . 

State  of  Ohio,  County,  ss.: 

,  being  duly  sworn,  deposes  and  says  the  notice,  of  which 


a   true   copy   is   hereto   attached,    was   published   in   ,   a   daily 

newspaper  printed  in  and  of  general  circulation  in  said  Coun- 
ty, Ohio,  once  a  week  for  consecutive  weeks,   commencing  on 

the  day   of  ,    19 ,   to-wit:    on  ,   , 

,  ,  and  . 

Sworn  to  before  me  and  subscribed  in  my  presence  on  this  

day  of  ,  19 .  , 


Notary  Public. 


No.  221.    Decree  and  order  of  court  confirming  sale. 

This   cause   coming   on   for   hearing  upon    the   return   of   , 

as  assignee  for  the  benefit  of  the  creditors  of  ,  of  his  pro- 
ceedings and  sale  of  real  estate,  the  court,  after  careful  examination 
and  being  satisfied  that  the  sale  has  in  all  respects  been  legally  made, 

does  hereby  approve  and  confirm  the  same  and  orders  that  said , 

as   such   assignee   make   to   the   purchasers,  and   ,   a 

good  and  sufficient  deed  of  the  premises  so  sold,  free  from  all  liens 
and   all    debts    due   by   the    assignor   and    from    the   contingent   dower 

interest  of ,  the  wife  of  said  assignor.    It  is  therefore  ordered, 

adjudged   and   decreed   by    the  court,   that   ,   assignee   for   the 

creditors  of — ,  make  to  the  purchasers  of  said  real  estate  a  good 

and   sufficient  deed   for   same,   free  from   all   liens  and  all   debts   due 


MERWINE    ON    REAL    ACTIONS.  338 

by    the    assignor,    and    from    the    contingent    dower    interest    of    said 

. ,  wife  of  said ,  assignor. 

This   cause  coming  on   for  an  order  to  distribute  the  proceeds  of 

the  sale  of  said   real   estate   amounting  to  the  sum   of   $ ,   it   is 

ordered   by   the   court    that    said   assignee,   out   of   the    moneys    in    his 
hands,  pay 

1.  To    the   treasurer   of   county,   the    taxes,    penalty    and 

interest  on  said  real  estate  in  the  sum  of  $ . 

2.  The  costs  of  this   proceeding,  including  the  sum  of  $ to 

plaintiff's  attorney  as  his  attorney  fee  for  conducting  this  suit,  to-wit: 
the  sum  of  $ . 

3.  To on  his  mortgage  herein  the  sum  of  $ . 

4.  The  remainder  of  said  sum,  said  assignee  is  ordered  to  distribute 
among  the  general  creditors  of  said ,  assignor. 

No.  222.     Form  of  assignee's  deed  at  public  sale. 

Know  all  Men  by  These  Presents: 

That     whereas    as   of   on   the   

<jay  of  ,  A.  D.  19 ,  filed  petition  in  the  Probate  Court 

within  and  for  the  County  of and  State  of  Ohio,  praying  said 

court  for  an  order  to  sell  the  following  described  real  estate  of  said 

,  situate  in  the  of  ,  County  of  ,  and 

State  of  Ohio,  and  known  as  ; 


And  Whereas,  on  the  day  of  ,  A.  D.  19 ,  such 

proceedings  were  had  by  and  before  said  court    that  the  said  

as  aforesaid  was  ordered  by  said  court  to  sell  said  premises  at  public 
sale,  according  to  law,  for  not  less  than  two-thirds  the  appraised  value 

thereof, the  dower  estate  therein  of of  said ; 

And  Whereas,  the  said  ,  as  aforesaid,  sold  said  premises, 

on  the  day  of ,  A.  D.  19 ,  to  for  the  sum 

of  dollars    ($ ),  said   sum   being  more  than   two-thirds 

of  the  appraised  value  of  said  premises,  and  the  highest  and  best  price 

offered  therefor,  and  the  said having  complied  with  the  terms 

of  said  sale,  and  said  sale  having  been  made  in  all  respects  according 

to    law,    the    same    was    afterwards,    to-wit:    on    the   ' day    of 

,  A.  D.  19 ,  approved  and  confirmed  by  said  court,  and  the 

said  f  as  aforesaid,  was  ordered  to  execute  and  deliver  to  said 

purchaser  a  proper  deed  for  said  premises,  according  to  the  statute  in 
such  case  made  and  provided;  all  of  which  will  more  fully  appear  by 
the  records  of  said  court,  to  which  reference  is  here  made; 

Now,  Therefore,  T,  the  said  ,  as  aforesaid,  in  consideration 

of  the  premises,  and  1  y  virtue  of  the  powers  in  me  vested  by  law 
and    under   the   order  of   said    court,    do   hereby    give,   grant,   bargain, 

sell    and    convey    unto    the    said (he    real    estate    aforesaid, 

free  of  the  said  dower  estate.  ,  wife  of  said  assignor,  with  all 

and  singular  Ihe  appurtenances  thereunto  belonging. 

To  have  and  to  hold  the   same  unto  the  said  and    unto 

heirs  and  assigns  forever. 


339 


FORMS. 


In   Testimony  Whereof,   I,  as  

my  hand,  at  this  day  of 


as  aforesaid,  hereunto  set 
.  A.  D.  19 . 


Signed  and  acknowledged  in  presence  of 


As 


of 


The   State    of   Ohio, 
Before  me,  a  


County,    ss.: 

in  and  for  said  county,  personally  appeared 
-,   who   acknowledged   that   he  did   sigL    the 

-  aforesaid,  and  that  the  same  is  h free 


the   above  named  

foregoing  deed  as  

act  and  deed,  for  the  uses  and  purposes  therein  mentioned. 

In  testimony  whereof,  I  hereunto  set  my  hand  and  official  seal  aL 

in    said    county,    Ohio,    this   day    of    ,    A. 

D.  19 . 


CHAPTER  VIII. 


SALE  OF  REAL  ESTATE  BY  A  RECEIVER. 


SECTION.  SECTION. 

288.  The    source    of    the    receiver's       290. 

authority    to    sell    real    es- 
tate. 

289.  The  statutory  powers  of  a  re-       291. 

ceiver. 


The  statutory  instances  in 
which  a  receiver  may  be  ap- 
pointed. 

The  manner  in  which  a  re- 
ceiver mav  be  appointed 
and  the  procedure  in  such 
case. 


Sec.  288.     The  source  of  the  receiver's  authority  to  sell  real 
estate. 

In  determining  the  powsr  and  authority  of  a  receiver  to  sell 
real  estate,  it  must  be  kept  steadily  in  mind  that  the  receiver 
is  an  officer  of  the  court  subject  at  all  times  to  the  orders  and 
directions  of  the  courts.  This  power  of  the  court  continues  to 
the  time  the  property  in  the  hands  of  a  receiver  is  sold  and  the 
sale  confirmed  by  the  court.  In  the  examination  of  title  to  real 
estate  and  the  conduct  of  the  proceedings  resulting  in  the  sale  of 
real  estate,  the  lawyer  will  look  carefully  into  the  powers  given 
the  receiver  in  his  appointment  and  in  the  court's  order  author- 
izing and  directing  the  receiver  to  sell  tli3  real  estate.  The 
receiver  at  all  times  must  comply  strictly  with  the  orders  and 
direction  of  the  courts.  And  courts  will  always,  if  it  serves 
the  best  interest  of  all  of  the  parties,  order  a  sale  of  the  real 
estate.1 


i  20  Am.  &  Eng.  End.  of  Law. 
145,  citing  Crane  v.  Ford,  Hopk. 
i  X.  V  i  114:  Brush  v.  Joy,  113  V 
V.  182;  Walker  v.  Morris,  14  Ga. 
::-j:::  McLane  v.  Placerville,  00  Cal. 
606.  "A  court  of  equity  appoint- 
ing a  receiver  to  take  possession  of 
property,  pending  litigation  concern- 


ing the  rights  of  the  parties  there- 
to, is  vested  with  ''  ower  of  sell- 
ing the  property  in  the  receiver's 
hands,  whenever  such  course  be- 
comes necessary  to  preserve  the  in- 
terest  of  all  parties."  High  on  Re- 
ceivers,   §  195. 

340 


341  SALE   OF   REAL   ESTATE   BY    A    KECEIVER.         §§289,290 

Sec.  289.     The  statutory  powers  of  a  receiver. 

It  is  enacted  in  this  State  that  receivers  have  power  undsr 
the  control  of  the  court,  to  bring  and  defend  actions  in  his 
own  name,  as  receiver,  to  take  and  keep  possession  of  the 
property,  to  receive  rents,  collect,  compound  for,  and  compro- 
mise demands,  make  transfers  and  generally  to  do  such  acts 
respecting  the  property  as  the  courts  may  authorize.2 

Sec.  290.     The  statutory  instances  in  which  a  receiver  may  be 
appointed. 

A  receiver  may  be  appointed  by  the  supreme  court,  the 
circuit  court,  the  court  of  common  pleas,  or  by  a  judge  of 
either,  or  in  the  absence  of  said  judges  from  the  county,  by 
the  probate  judge  of  the  county,  in  the  following  cases : 

1.  In  an  action  by  a  vendor  to  vacate  a  fraudulent  purchase 
of  prop3rty,  or  by  a  creditor  to  subject  any  property  or  fund 
to  his  claim,  or  between  partners  or  others  jointly  owning  or 
interested  in  any  property  or  fund,  on  the  application  of  the 
plaintiff,  or  of  any  party  whose  right  to  or  interest  in  the 
property  or  fund  or  the  proceeds  thereof  is  probable,  and 
where  it  is  shown  that  the  property  or  fund  is  in  danger  of 
being  lost,  removed,  or  materially  injured. 

2.  In  an  action  by  a  mortgagee  for  the  foreclosure  of  his 
mortgage,  and  sale  of  the  mortgaged  property,  where  it  ap- 
pears that  the  mortgaged  property  is  in  danger  of  being  lost, 
removed,  or  materially  injured,  or  that  the  condition  of  the 
mortgage  has  not  been  performed,  and  the  property  is  proba- 
bly insufficient  to  'discharge  the  mortgage  debt. 

3.  After  judgment,  to  carry  the  judgment  into  effect. 

4.  After  judgment,  to  dispose  of  the  property  according 
to  the  judgment,  *or  to  preserve  it  during  the  pendency  of  an 
appeal  or  when  an  execution  has  been  returned  unsatisfied 
and  the  judgment  debtor  refuses  to  apply  the  property  in 
satisfaction  of  the  judgment. 

5.  In  the  cases  provided  in  this  title,  and  by  special  statutes, 
when  a  corporation  has  been  dissolved,  or  is  insolvent,  or  in 
imminent  danger  of  insolvency,  or  has  forfeited  its  corporate 
rights. 

6.  In  all  other  cases  where  receivers  have  heretofore  been 
appointed  by  the  usages  of  courts  of  equity.3 

2Gen'l     Code,      §10897      (R.     S.  s  Gen'l     Code,     §11805      (R.     S. 

§5590).  §5507). 


§  291  MERWINE    ON    KEAL    ACTIONS.  342 

Sec.  291.     The  manner  in  which  a  receiver  is  appointed  and  the 
procedure  in  such  cases. 

After  a  receiver  has  been  appointed  and  qualified  according 
to  law,  especially  if  ha  be  a  receiver  of  an  insolvent  corporation, 
he  is  required  usually  by  order  of  the  court,  to  prepare  and 
file  in  the  case  in  which  he  was  appointed,  a  schedule  of  the 
property  of  the  defendant,  together  with  a  schedule*  of  defend- 
ant's indebtedness.  If  the  receiver  deems  it  necessary,  during 
the  course  of  his  receivership,  to  sell  the  real  estate  mentioned 
and  set  forth  in  the  schedule,  he  makes  his  application  to  the 
court  asking  the  court's  instruction  in  the  matter,  and  if  on  the 
hearing  of  the  application,  the  court  is  of  the  opinion  that  the 
real  estate*  should  -be  sold,  the  court  so  orders  and  in  the  entry 
ordering  the  sale  of  the  real  estate,  the  court  will  appoint  the 
appraisers.  The  appraisers  proceed  to  view  the  real  estate, 
and  after  being  duly  sworn,  make  out  their  appraisement  which 
the  receiver  returns  to  the  court  and  which  the  court  will  con- 
firm if  correct.  The  sale-  may  be  made  under  an  advertisement, 
published  less  times  than  is  required  in  cases  where  property  is 
sold  under  execution,  if  the  court  so  orders.  After  the  sale  has 
been  confirmed  and  the  deed  executed  and  delivered  in  con- 
formity to  law,  the  purchaser's  title  can  not  be  impeached 
collaterally.  Upon  this  subject  it  has  been  well  said:  "It  is 
sufficient  for  a  purchaser  at  a  receiver's  sale,  who  has  received 
a  deed  for  the  real  estate  by  the  receiver,  to  see  that  there 
has  been  a  suit  in  equity,  or  was  one,  in  which  the  court  ap- 
pointed a  receiver  of  property ;  that  a  sale  was  made  under  such 
authority ;  that  the  sale  was  confirmed  by  the  court,  and  that 
the  deed  accurately  recites  the  property  sold.  He  is  not  bound 
to  ascertain  whether  any  errors  intervened  in  the  action  of 
the  court,  or  irregularities  were  committed  by  the  receiver  in 
the  sale,  any  more  than  a  purchaser  under  execution  upon  a, 
judgment  is  bound  to  look  into  the  errors  and  irregularities 
of  a  court  on  the  trial  of  a  case,  or  of  the  officer  in  enforc- 
ing it.4 


■  ^ 


i  Koontz    v.    Northern,     lfi    Wall.  decrees     of     the     court     from     the 

L96.      Sec   Numbers  223    to   24.").    in-  filing   of   the    petition    to   the'execu- 

clusive,   where  is  to   be   found    all   of  tion  and  delivery  of  the  deed  to  the 

the    pleadings,    writs,    process,    ap-  purchaser. 
plications,    judgments,    orders    and 


FORMS. 


PROCEDURE  BY  WHICH  REAL  ESTATE   IS  SOLD   BY 
RECEIVER  OF  THE  COURT, 


FORMS. 

223.  The  petition  in  the  action-  in 
which  a  receiver  is  ap- 
pointed. 

The   precipe   for   a    summons. 

The    summons. 

The  sheriff's  return  of  the 
writ. 

The  rnotion  asking  for  the  ap- 
pointment   of   a    receiver. 

The  notice  to  the  defendant 
of  the  time  and  place  ask- 
ing for  the  appointment  of 
a  receiver. 

The  order  of  the  court  ap- 
pointing  a   receiver. 

The  order  of  the  court  ap- 
pointing counsel  to  advise 
receiver. 

Motion  asking  the  court's  in- 
struction as  to  publication 
of  notice    to   creditors. 

Order  of  the  court  directing 
the  manner  and  kind  of  no- 
tice to  be  published  to 
creditors. 


224. 
225. 

22(1. 

227. 

228. 


229. 


230. 


231. 


232. 


FORMS. 

233.  The  notice  so  published. 

234.  Proof  of   the    publication. 

235.  The  inventory  filed  in  the  ac- 

tion  by    the   receiver. 

236.  Application    for    the    appoint- 

ment of  appraisers  and  for 
the  order  to  sell  real  estate. 

237.  The    receiver'-;    report    of    ap- 

praisement. 

238.  The  appraisers'  oath  and  their 

report  of  ;-, ppraisement. 

239.  The  application  for  confirma- 

tion   of    appraisement. 

240.  The  confirmation  of  appraise- 

ment and  order  of  sale. 

241.  Receiver's    report    of    sale    of 

real    estate. 

242.  Legal  notice  of  receiver's  sale. 

243.  The  proof  of  publication. 

244.  The    order    of    the    court   con- 

firming   sale. 

245.  The  deed  from  the  receiver  to 

the   purchaser. 


No.  223.     The  petition  in  the  action  in  which  a  receiver  is 
appointed. 


C.  F.  J., 


The 


Court  ok  Common  Pleas, 

Plaintiff, 
vs. 
Company, 


County,  Ohio. 


No. 


Defendant. 


Petition. 


1.     First  Cause  of  Action. 

For   his    petition    herein   and    as   a   first   cause   of  action,    plaintiff 
states  that  defendant  is  a  corporation  duly  organized  and  incorporated 
343 


MERWINE   ON    REAL   ACTIONS.  344 

under  and  by  virtue  of  the  laws  of  the  State  of  Ohio,  with  its  principal 

office  and  place  of  business  in  the  City  of ,  County  of , 

and  State  of  Ohio,  and  that  he  is  the  president  of  the  board  of  direc- 
tors of  said  company;    that  there  is  due  him   from  the  defendant  on 

a  promissory  note  the  sum   of   $ ,  with   interest   at   the   rate   of 

per  cent,  per  annum,  payable  annually    from  the  day  of 

,  19 ,  which  sum,  with  interest  as  aforesaid,  plaintiff  claims. 

A  copy  of  said  note  with  all  credits  and  indorsements  thereon  is 
as  follows:      (Here  copy  note  with  indorsements  thereon). 

There  are  no  other  credits  or  indorsements  on  said  note  except 
as  above  set  forth. 

Plaintiff  holds  no  security  whatever  for  the  payment  of  said  note. 

2.     Second  Cause  of  Action. 

Plaintiff  says  that  defendant  is  indebted  to  him   in  the  principal 

sum  of  $ on  a  promissory  note  set  forth  in  said  first  cause  of 

action  herein;    that  the  same  with  interest  is   due  and  unpaid,   and 

plaintiff   holds    no    security    therefor;    that   he    is    the   owner    of   

shares  of  the  preferred  stock  of  said  company,  said  preferred   stock 

being  of  the  par  value  of  $ per  share;    that  the  total  amount 

of  preferred  stock  issued  and  outstanding  is  shares  of  the  par 

value    of    $ ;    that    the    said    total    amount    of    preferred    stock, 

which  includes  the  same  held  by  said  plaintiff  is  by  the  terms  thereof 
to  be  preferred  in  the  liquidation  of  said  company  over  and  above 
the  amounts  represented  by  the  common  stock  in  the  defendant  com- 
pany, but  that  all  obligations  and  indebtedness  of  said  company  as 
herein  approximately  set  forth  have  preference  over  the  payment 
by  the  company  of  any  amounts  whatever  on  its  obligations  as  rep- 
resented   by    said    preferred    stock    in    said    amount    of    $ ;    that 

there  is  also  common  stock  of  said  company  in  amount  of 

$ issued  and  outstanding;  that  in  the  transaction  of  the  business 

of  the  company  and  for  the  purpose  of  raising  the  money  necessary 
to  conduct  and  to  continue  to  operate  its  said  business  as  hereinafter 
described,  plaintiff  has  at  various  times  become  and  now  is  surety 
for  said  defendant  company  in  a  very  large  amount  for  money  bor- 
rowed and  used  by  and  in  the  business  of  said  company,  the  said 
indebtedness  on  which  the  said   plaintiff  is  surety   being  represented 

by  a   promissory   note   in   a  sum   exceeding  $ ;    that  he  has  no 

security  whatever  for  his  liability  as  said  surety  and  that  he  became 
the  said  surety  without  any  consideration  whatever;  that  there  is 
due  from  the  defendant  to  various  persons  and  corporations  on  open 

and   unsecured  accounts  the  sum  of  $ ;    that  the  said  company 

is  not  making  any  effort  to  pay  off  or  discharge  the  debts  on  which 

plaintiff   is   surety   as  aforesaid,   of   which    debts   the   sum   of   $ 

is  past  due  and  unpaid,  and  this  defendant  comnany  is  not  able  to 
pay  or  secure  payment  of  the  same;  that  the  company  is  incorporated 
for   the    purpose   of   doing   business    in    the   manufacture   and   sale    of 

;   that  it  is  fully  and  completely  equipped  for  said  business; 

that  it  owns  the  manufacturing  plant  with  all  the  customary  and 
necessary  modern  machinery  for  said  business  and  further  owns  the 


345 


FORMS. 


real  estate  on  which  said  plant  is  situated;  that  it  has  a  large  tract 
of  land  situated  (Here  describe  it)  on  which  are  built  large  buildings 
for  its  manufacturing  purposes;  that  the  assets  and  property  of  said 
defendant  as  above  mentioned,  and  all  other  assets  and  property  not 
specifically  set  forth  herein,  will  be  entirely  insufficient  to  pay  off 
and  discharge  its  debts  and  liabilities;  that  said  company's  business 
cannot  be  continued  without  the  loss  and  wasting  of  its  assets;  that 
said  company  has  been  running  for  a  considerable  time  at  great  loss 
to  the  stockholders  and  especially  to  this  plaintiff;  that  the  amount 
represented  by  the  note  set  forth  in  the  plaintiff's  first  cause  of 
action  herein  was  loaned  by  this  plaintiff  to  the  company  in  an  effort 
to  put  the  company  on  a  paying  basis  and  to  make  it  a  profitable 
investment  for  its  stockholders  and  owners;  that  the  plaintiff  is 
unable  and  unwilling  to  advance  further  money  or  funds  to  defendant 
with  which  to  carry  on  defendant's  business;  that  said  company  has 
no  funds  whatever  with  which  to  pay  its  indebtedness  hereinbefore 
set  forth  to  this  plaintiff  or  its  indebtedness  on  the  open  accounts 
as  hereinbefore  set  forth,  or  its  indebtedness  of  the  amounts  for  which 
this  plaintiff  is  surety;  that  a  dividend  of  three  per  cent,  on  the  pre- 
ferred stock,  as  hereinbefore  set  forth,  is  due,  and  said  defendant 
has  not  sufficient  funds  or  any  funds  whatever  with  which  to  pay 
said  dividend,  nor  will  it  have  or  be  able  to  obtain  any  money  with 
which  to  pay  the  same;  that  the  said  defendant  company  is  unable 
to  borrow  or  secure  further  funds  with  which  to  continue  its  business 
and  is  accordingly  unable  to  continue  said  business. 

By  reason  of  the  foregoing  enumerated  facts,  plaintiff  is  informed 
and  believes  and  therefore  avers  that  a  multiplicity  of  suits  are 
threatened  and  about  to  be  filed  against  defendant  and  that  to  prevent 
the  same  and  other  and  further  wasting  and  dissipation  of  said 
property,   a  receiver  for  defendant  is  necessary. 

Plaintiff  further  says  that  it  is  necessary  to  sell  all  of  the  property 
of  the  said  company  of  whatever  kind  consisting,  whether  real,  per- 
sonal or  mixed  and  to  collect  all  its  accounts,  claims  or  demands  in 
order  to  meet  its  liabilities  and  pay  off  and  discharge  its  debts. 

Wherefore  and  by  reason  of  the  premises,  plaintiff  asks  judgment 
against  the  defendant  in  the  sum  of  $ ,  with  interest  as  afore- 
said; that  after  the  claims  having  priority  shall  have  been  paid, 
that  the  court  direct  payment,  should  there  be  funds  on  hands  with 
which  to  do  so,  the  amount  due  from  defendant  on  the  preferred 
stock  of  the  said  defendant,  outstanding,  including  the  said  preferred 

stock  owned  by  plaintiff  in  the  sum  of  $ ,  and  all  accumulated 

deferred  payments  thereon,  of  which  there  are  two. 

Plaintiff  further  prays  that  the  company  be  compelled  to  pay  off 
and  discharge  the  said  notes  upon  which  plaintiff  is  surety  as  above 
set  forth,  and  shall  be  hereafter  proved  and  exhibited  to  the  court 
herein,  and  save  him,  the  said  plaintiff,  from  the  payment  thereof; 
that  a  receiver  be  appointed  to  take  charge  and  control  of  the 
property  real,  personal  and  mixed,  of  all  the  assets  of  said  company 
of  every  kind  and   description,   and  to  convert  the   same  into  money 


MERWINE    ON    RE\L    ACTIONS.  346 

as  speedily  as  possible;  that  the  said  receiver  proceed  to  collect  all 
the  claims  and  demands  due  the  said  company;  that  the  real  estate, 
fixtures  and  all  other  property  of  the  defendant  company  and  belonging 
to  said  company  be  appraised  and  sold  by  order  of  the  court  and 
according  to  law;  that  the  money  so  collected  and  the  proceeds  of 
the  sale  of  the  property  of  said  defendant  of  every  kind  and  descrip- 
tion be  paid  to  the  creditors  with  reference  to  their  priority  as  shall 
be  hereafter  determined,  and  in  proportion  to  the  claims  of  said 
creditors  against  said  company  as  shall  be  hereafter  determined,  and 
that  this  plaintiff  may  have  such  other  and  further  relief  as  may 
be  proper  in  the  premises.  H.,  H.  &  J., 

Attorneys  for  Plaintiff. 

This  petition  should  be  verified  as  in  other  cases. 

No.  224.    The  precipe. 

To  the  Clerk: 

Please  issue  summons  in  the  above  entitled  action  on  the  defendant 
therein  named,  directed  to  the  sheriff  of  County,  Ohio,  re- 
turnable according  to  law.  Endorse:  "Action  for  money  in  the  amount 
of  $ ,  and  interest;   for  the  appointment  of  a  receiver  and  other 

equitable  relief."  > 

Attorney  for  Plaintiff. 

No.  225.     The  summons  in  this  action. 

The  State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  hereby  commanded  to  notify  the  Company   that 

it  has  been  sued  by in  the  Court  of  Common  Pleas  of — 

County,  and  that  unless  it  answer  before  the day  of  , 

in   the  year   or   our  Lord   one   thousand   nine    hundred   and   , 

the  petition  of  the   said  plaintiff  against   it  filed   in   the   clerk's  office 

of  County,  such  petition  will  be  taken  as  true  and  judgment 

rendered   accordingly.     You    will    make    due    return    of    this   summons 
on  the day  of ,  in  the  year  of  our  Lord    one  thousand 

nine  hundred  and  .  '» 

Clerk,  of  said  Court. 

No.  226.     The  sheriff's  return  of  his  proceedings  under  s&iC 
writ. 

The  State  of  Ohio,  County,  ss.: 

Received   this   writ   on   the   day   of  in   the   year 

of  our  Lord   one  thousand  nine  hundred  and ,  at o'clock, 

m.,  and  pursuant  to  its  command,  on  the day  of 

in  the  year  of  ourXord   one  thousand  nine  hundred  and  ,  I 

served  the  within  named  defendant  The  Company  by  personally 

handing    a    true    and    duly    certified    copy    of    this    writ    with    all    the 


347  FORMS 

indorsements  thereon  to  C.  F.  J.,  president  of  the  said  The 
Company.  


Sheriff  of  County. 

No.  227.    Motion  asking  for  the  appointment  of  a  receiver. 

Court  of  Common  Pleas,  County,  Ohio. 

C.   F.  J., 

Plaintiff, 

vs.  No. -. 

The  Company, 

Defendant. 

Now  comes  the   plaintiff  herein,  and   moves  the  court   for  tha  ap- 
pointment of  a  receiver  as  prayed  for  in  his  petition  herein. 

No.  228.     Notice  to  the  defendant  of  the  time  and  place  of 
asking  for  the  appointment  of  a  receiver. 

To  The  Company,  ,  Ohio. 

Gentlemen: 

You  are  hereby  notified  that  in  the  suit  of vs.  The 


Company,   an   application    for    the   appointment  of   a   receiver   of   said 

The  Company  will  be  made  by  the  plaintiff  above  mentioned 

before  his   Honor  at  the   court  house   in   ,   Ohio,  at 

o'clock,  on  the  morning  of  the  day  of  ,  19 , 

or  as  soon  thereafter  as  counsel  may  be  heard. 

Very  respectfully  yours, 


Service  of   copy   of  the  above   is   acknowledged   this day 

of  ,  19 .  , 

The  Company. 

No.  229.     The  order  of  the  court  appointing  a  receiver. 

Court  of  Common  Pleas,  County,  Ohio. 

C.  F.  J., 

Plaintiff, 

vs.  No. . 

The  Company, 

Defendant. 

This  day  this  cause  came  on  to  be  heard  upon  the  motion  of  the 
plaintiff  for  the  appointment  of  a  receiver  for  the  defendant  herein, 
and  the  court  upon  consideration  of  said  motion,  and  being  fully  advised 
in  the  premises,  does  find  that  a  receiver  for  the  defendant  company, 
as  prayed  for  in  the  petition  herein,  should  be  appointed,  and  the 
motion  of  the  plaintiff  for  said  appointment  is  accordingly  sustained. 

It  is  therefore  ordered,  adjudged  and  decreed  that  be 

he  hereby  is  appointed  receiver  of  all  of  the  debts,  property,     r; 


MERWINE   ON    REAL    ACTIONS.  348 

interest  and  things  in  action  of  every  kind  whatsoever  due  said  The 

Company,  and  all   persons  having  any  property  of  the  said 

The  Company  in  their  possession    or  under  their  control  are 

hereby  ordered  to  deliver  the  same  to  said   receiver,  and  all  persons 

owing  any  notes  to  the  said  The Company  are  hereby  directed 

to  pay  over  the  same  to  said  ,  as  said  receiver  on  his  demand 

therefor. 

And  the  said  receiver  is  accordingly  ordered  to  proceed  with  the 
discharge  of  his  trust  as  herein  created,  subject  to  this  order  of  his 
appointment,  and  the  further  orders  and  directions  of  the  court  herein, 
and  he  is  further  ordered  to  continue  the  business  of  the  defendant 
company  until  the  further  order  of  this  court;  and  it  is  further  ordered 
that  before  entering  upon  his  duties  as  such  receiver  he  execute  a 
bond  for  the  faithful  performance  of  his  duties  herein,  an  undertaking 
conditioned  according  to  law,  in  the  sum  of  $ . 

No.  230.    The  order  of  the  court  appointing  counsel  to  advise 
receiver. 

Court  of  Common  Pleas,  County,  Ohio. 

C.  F.  J., 

Plaintiff, 

vs.  No.  

The  Company, 

Defendant. 

This  cause  coming  on  to  be  heard  upon  the  application  of , 

receiver  herein,  asking  the  court  to  appoint  an  attorney  to  render 
and  give  to  him  as  receiver  such  legal  services  and  advice  as  he  may 
require  in  the  administration  of  said  receivership,  and  upon  due 
consideration  of  said  application  the  court  finds  that  it  is  necessary 
for  said  receiver  to  have  legal  service  and  advice  of  an  attorney  in 
carrying  out  his  duties  as  receiver  herein,  and,  therefore,  upon  the 
application  of  said  receiver  the  court  appoints  J.  W.  M.  as  such  attorney, 
and  authorizes  and  directs  said  receiver  to  consult  and  employ  said 
J.  W.  M.  at  such  times  and  in  such  manner  as  he  may  require  legal 
advice,  or  the  services  of  an  attorney  in  carrying  out  his  duties  as 
receiver  herein. 

No.  231.     Motion  asking  the  court's  instruction  as  to  publica- 
tion of  notice  to  creditors. 

Court  of  Common  Pleas,  County,  Ohio. 

C.  F.  J., 

Plaintiff, 

vs.  No.  . 

The  Company, 

Defendant. 

Now   comes   ,   receiver  herein,  and   asks  the  court  for  an 

order  directing  him    to   publish   notice    requiring  creditors   to   present 


349  FORMS. 

their  claims  to  him  and  to  fix  the  time  to  be  stated   in  said  notice 

and   within   which    creditors   of  The   Company  shall    present 

their  claims  to  him  as  such  receiver. 


No.  232.     The  order  of  the  court  directing  the  manner  and  kind 
of  notice  to  be  published  to  creditors. 

Court  of  Common  Pleas,  County,  Ohio. 

C.  F.  J., 

Plaintiff, 

vs.  Nq.  -. 

The  Company, 

Defendant. 


This   day   this    cause   came   on   to   be   heard   upon   the   application 

of  ,   receiver  herein,  asking  the  court  for  an  order  directing 

him  to  publish   notice   to  the  creditors   of  The  Company  to 

present  their  claims  for  allowance  and  to  fix  the  time  within  which 
such  claims    shall   be  presented,    and   on   consideration   whereof,    it   is 

ordered  by  the  court  that  said ,  receiver  herein,  or  The 

Company,  give  notice  in  a  newspaper  of  general  circulation  in  

County,  for  consecutive  weeks,   to  the  creditors  and  all   persons 

interested    in    The   Company,    that    all    such    persons    having 

claims  of  any  kind  against  said  company  are  required  to  present 
the  same,  duly  verified,  to  the  said  receiver  for  allowance  within 
days  from  the  date  of  the  first  publication  of  said  notice. 


No.  233.     The  notice  published, 
c.  f.  j., 

Plaintiff, 

vs.  No.  . 

The  Company, 

Defendant. 

Notice  is  hereby  given  of  the  appointment  of  as  receiver 

of  The  Company,  and  all  persons  indebted  to  said  company 

are  required  to  make  payment  direct  to  him  at ,  or  deliver  him 

any  property  in  their  possession  belonging  to  said  company;  that  all 
persons  holding  claims  against  said  company  are  required  to  present 
them   to    said   receiver,   duly   authenticated,   for   allowance,   before   the 

day  of  ,  19 ,   and  that  any  persons  holding  an  open 

or  subsisting  contract  with  said  company  are  required  to  present  the 
same  to  said  receiver. 

Dated  this  day  of  ,   19 . 


Attorney  for  said  Receiver. 


MERWINE    ON    REAL    ACTIONS.  350 

No.  234.     The  proof  of  publication. 

State   of    Ohio,   County,    ss.: 

,  foreman  of  ,  a  newspaper  published  and  printed 

in   County,   Ohio,    personally    appeared    and    made   oath    that 

the  attached  printed   legal  notice  was   published  consecutive 

weeks  in  said  newspaper  from  the day  of ,  19 . 

Further  affiant  sayeth  not.  . 

Subscribed  to  and  sworn  to  this  day  of  ,  19 . 


Notary  Public,  County,  Ohio 

No.  235.     The  inventory  filed  in  the  action  by  the  receiver. 

c.  F.  J., 

Plaintiff, 

vs.  No.  . 

The  Company, 

Defendant. 

Now  comes  ,  appointed  receiver  herein  on  the  day 

of ,  19 ,  and  represents  to  the  court  that  the  defendant  was 

on  said  date   the  owner  of  the  following  real  and   personal    property 

situated  in  County,  Ohio;    of  which  he,  as  such  receiver,   is 

now  in  possession,  to-wit:      (Here  describe  it). 


Receiver. 

No.  236.     The  application  for  the  appointment  of  appraisers 
and  order  to  sell  real  estate. 

C.  F.  J., 

Plaintiff, 

vs.  No.  . 

The  — Company, 

Defendant. 

Now  comes  — ; ,  heretofore  appointed  receiver  herein,  and  rep- 
resents to  the  court  that  the  defendant,  The  Company,  was  on 

the  date  of  his  appointment  as  said  receiver,  the  owner  of  the  real  and 

personal   property  situated  within  County,  Ohio,  described  and 

mentioned  in  his  inventory  heretofore  filed  herein. 

Said  receiver  further  represents  that  to  procure  funds  with  which 
to  pay  the  debts  due  and  owing  by  the  defendant  it  will  be  neces- 
sary to  sell  said  real  estate  and  all  of  the  property  described  and 
enumerated   in   his  inventory  filed  herewith. 

Therefore  said  receiver  asks  the  court  for  an  order  appointing 
appraisers  to  separately  appraise  said  real  estate  and  said  personal 
property,  in  order  that  the  same  may  be  sold,  and  that  after  said 
appraisement  is  returned,  the  court  order  him,  as  such  receiver,  to 
sell  in  such  manner  as  the  court  may  direct  said  appraised  real  estate 


351  POEMS. 

and   personal    property  at    public  sale,  and   convey   all   the   right,  title 

and  interest  of  the  said  The  Company  in  and  to  said  property 

to   the  purchaser,  and   for  such  other  orders  as   the  court  may   deem 

proper.  , 

Attorney  for  Receiver. 

No.  237.     The  receiver's  report  of  appraisement. 


Court  of  Common   Pleas,  County,   Ohio. 


C.  F.  J., 


Plaintiff, 

vs.  No.  . 

The  Company, 

Defendant. 

Now   comes  ,    receiver  herein,   and   respectfully    represents 

that  pursuant  to  an  order  heretofore  made  by  this  court  herein, 
ordering  and  directing  him  to  cause  an  appraisement  to  be  made  of 

the  real  estate  and  certain  personal  property  belonging  to  The ■ 

Company    located    in    County,    Ohio,    and    as    described    and 

enumerated  in  his  inventory  filed  herein,  and  mentioned  in  said 
order  appointing  appraisers,  he  has  caused  the  same  to  be  made,  and 
herewith   submits    his    report   of   said   appraisement. 


No.  238.     Oath  of  appraisers,  and  their  report. 

State  of  Ohio,  County,  ss.: 

We,    the    undersigned,    do    make    solemn    oath    that    we    will    truly, 
honestly  and  impartially   appraise  all  the  real  and  personal   pioperty 

of  the  said   The  Company   located    in   County,   and 

perform  all   the  other  duties   required   by  law   of  us   in  the  premises 
as  appraisers  to  the  best  of  our  knowledge  and  ability. 


Appraisers. 

Sworn  to  before  me  and   subscribed   in  my  presence  on  th:s  — 
day  of .  19 .  . 


Notary    Public. 

Court  of  Common  Pleas, County,  Ohio. 

C.  F.  J., 

Plaintiff, 

vs.  No.  . 

The Company, 

Defendant. 

Now  c-cmes  ,  and  .  and  respectfully  repre- 
sent that  they  have  appraised  all  of  the  real  estate  of  The  

Company  and  personal  property  of  said  company  as  ordered  and  men- 


MERWINE   ON   REAL   ACTIONS.  352 

tioned   in   the  order  of  the  court  appointing  them  as  appraisers,  ail 

of  said  property  being  located  in  County,  Ohio,  and  submit 

herewith  their  report  of  said  appraisement. 


Appraisers. 

The    following   described    real   estate    in   the    County   of   , 

State  of   Ohio,   in   the   city  of  to-wit:     (Here   describe   it), 

we  do  appraise  at  $ . 

Given  under  our  hands  this  day  of  ,  19 . 


Appraisers. 

No.  239.    The  application  for  confirmation  of  appraisemen* 

Now   comes  ,   receiver  herein,   and   respectfully   represents 

to  this  court  that  he  has  returned  and  filed  with  this  court  an  appraise- 
ment made  by  the  appraisers  heretofore  appointed  by  this  court  and 
asks  the  court  for  further  instructions  and  orders  upon  bis  application 
filed  herewith,  asking  for  an  order  to  sell  the  real  estate  and  other 
property  of  the  defendant  company  described  and  enumerated  in   his 

inventory   filed  herein.  , 

Attorney  for  Receiver. 

No.  240.     The  confirmation  of  appraisement  and  order  of  sale. 

Court  of  Common  Pleas,  County,  Ohio. 

C.  F.  J., 

Plaintiff, 

vs.  No.  . 

The Company, 

Defendant. 

This  day  this  cause  came  on  to  be  heard  on  the  application  of  the 
receiver  herein  for  an  order  of  the  court  approving  and  confirming 
the    report    of   the    appraisers   heretofore    appointed    by    this    court    to 

appraise  the  real  estate  and  other  property  of  The  Company 

described  and  enumerated  in  said  order,  and  on  consideration  thereof 
the  court  finds  that  said  appraisement  has  been  made  and  returned 
in  conformity  to  law  and  the  former  orders  of  this  court,  and  it  is 
further  ordered  that  the  said  appraisement  be,  and  the  same  is  hereby 
approved  and  confirmed. 

And  this  cause  coming  on  further  to  be  heard  upon  the  application 
of  said  receiver  for  instructions  as  to  the  sale  of  said  real  estate 
and  other  property  of  the  said  defendant  company  described  and 
enumerated  in  said  appraisement,  and  on  consideration  whereof,  the 
court  having  found  that  it  will  be  necessary  to  sell  all  of  said  real 


353 


FORMS. 


estate  and  other  property  of  said  defendant  in  order  to  procure  funds 
with  which  to  pay  the  claims  due  and  owing  by  said  defendant,  the 
court  further  finds  that  it  will  be  for  the  best  interest  of  all  the 
parties  hereto  that  said  property  be  offered  at  public  sale. 

It  is  therefore  ordered  by  the  court  that  said  receiver  proceed  to 
advertise  said   real  estate  and  said  personal   property    described   and 

enumerated  in  said  appraisement  for  sale,  by  publication  in  

newspapers  of  general  circulation  in  —  County,  Ohio,  on 


and of  each  week,  until  the  day  of  ,  19 ,  and 

that  he  then  proceed  to  sell  the  same  as  hereinafter  directed,  at  public 

auction  at  the  court  house  of  said  county  on  the day  of 

19 ,  at o'clock  —  m.,  at  not  less  than  two-thirds  of  the  appraised 

value  thereof,  and  for  cash,   to-wit:      (Here  describe  real  estate  and 
other  property  to  be  sold). 

Said  receiver  is  further  directed  to  report  his  proceedings  in  the 
premises  to  this  court  for  confirmation  and  for  further  orders. 

No.  241.     The  receiver's  report  of  sale  of  real  estate. 

Coubt  of  Common  Pleas,  County   Ohio 

C.  F.  J., 

Plaintiff, 

vs-  No.  . 

The  Company, 

Defendant. 

In  obedience  to  the  orders  of  this  court  made  and  entered  on  the 

day  of  ,  19 ,  ordering  and   directing  me  as  receiver 

of  The  Company  to  proceed  to  advertise  the  said  real  estate 

and  other  property  of  The Company,  described  and  enumerated 

in  said  order  of  sale,  by  publication  in newspapers  of  general 

circulation  in  County,  Ohio,  on  the  day  of  of 

each  week  until  the  day  of ,  19 ,  and  to  then  proceed 

to   sell    the    same   at   public   auction   at   the    court   house   of  

County,  Ohio,  on  the day  of ,  19 ,  at  o'clock  — m., 

at  not  less  than  two-thirds  of  the  appraised  value  thereof,  and  for  cash, 
and  in  the  manner  in  said  order  directed,  I  caused  to  be  advertised 

for  sale  in  and  ,  newspapers  in  general  circulation 

in  County,  Ohio,  on  the  dates  in  said  order  directed,  said  real 

estate  and  other  property  in  said  order  described  and  enumerated,  to 
be  by  me,  as  said  receiver,  sold  at  public  auction  at  the  court  house  of 

said  County,  Ohio,  on  the  day  of  ,   19 ,  at 

o'clock m.,  of  said  day,  and  did  on  said  day  of  , 

19~       •  at o'clock  —  m..  at  the   court  house  of  County, 

Ohio,  proceed  to  offer  at  public  sale  said  real  estate  and  other  property 
as  ordered  and  directed  by  said  court,  the  following  described  real 
estate  and  other  property:      (Here  describe  it). 

And  then  and  there  came  C.  F.  J.,  who  bid  for  the  same  the  sum 
of    $-  t    and    said    sum     bejng    two-thirds    of    the    appraised 

value    thereof,    and    the    highest    bid    made    therefor,    no    further 


MERWINE   ON    REAL    ACTIONS.  354 

bid  being  made,  I  declared  said  bid  accepted,  and  then  and  there 
publicly  sold  and  struck  off  said  real  estate  and  other  property  specifi- 
cally described  and  enumerated  above  to  the  said  C.  F.  J.  at  his  said 
bid  therefor,  and  declared  the  same  sold  to  him,  subject  to  be  confirmed 
by  this  court,  and  I  now  make  return  of  my  said  proceedings  under 
said  order  and  sale  made  by  me  thereunder,  to  this  court  for  con- 
firmation. 


As  Receiver  of  The Company. 

No.  242.     The  legal  notice  of  receiver's  sale. 

In  the  Court  of  Common  Pleas,  County,  Ohio. 

C.  F.  J., 

Plaintiff, 

vs.  No.  . 

The  — Company, 

Defendant. 

Notice   is   hereby  given   that  by   virtue  of  an  order  by  the  Court 

of  Common  Pleas  made  on   the  day  of  ,   19 ,   I   will 

offer  for  sale  at  public  auction  on   the  day  of  ,  19 , 

at  o'clock   — m.,    at   the    court   house   of  County,    Ohio, 

the  following  described  real  estate  and  other  property  of  The  

Company:      (Here  insert  description  of  real  estate  and  other  property). 

Total   appraisement  of  said   real  estate  $ .     Terms  of   sale, 

cash.  No  bid  of  less  than  two-thirds  of  the  appraised  value  will  be 
accepted.  Sale  to  be  subject  to  confirmation  by  the  Common  Pleas 
Court. 


Receiver. 


No.  243.     The  proof  of  publication. 

State  of  Ohio,  County,  ss.: 

foreman  of  ,  a  newspaper  published  and   printed 


in  County,  Ohio,  personally  appeared  and  made  oath  that  the 

attached  printed  advertisement  was  published  times  in  said 

newspaper;    that  is,  on  ,   19 ,  and   that  said  newspaper  is 

of  general  circulation  in  said  county. 


Subscribed  and  sworn  to  this  day  of  .  19- 


Notary    Public. 


355  FORMS. 

No.  244.     The  entry  confirming  the  sale  of  real  estate. 

Court  of  Common   Pleas,  County,  Ohio. 

C.  F.  J., 

Plaintiff, 

vs.  No.  . 

The  Company, 

Defendant. 

This  day  this  cause  came  on  to  be  heard  on  the  report  of  , 

receiver    of  The  Company  herein,  of  the  sale  made  by   him 

on    the   day    of ,    19 ,    at o'clock    — m.,    at    the 

court  house  of  ■ County,  Ohio,  at  which  he,  as  said  receiver, 

publicly  sold  in  pursuance  of  an  order  of  this  court  made  and  entered 

on  the  day  of  ,  19 ,  that  part  of  said  real  estate  and 

other    property   of    said    The   Company,    ordered    by   this    court 

in  said  order  to  be  offered  for  sale,  to  C.  F.  J.  who  bid  for  the  same 

the  sum   of  $ ,   which    was   two-thirds   of   the   appraised   value 

of  said  real  estate  and  other  property;  and  on  motion  of  said  receiver 
to  confirm  the  same  and  the  court  having  carefully  examined  said 
report  and  being  satisfied  that  said  sale  has  in  all  respects  been  made 
in  conformity  to  law  and  the  said  orders  of  this  court,  it  is  ordered 
by  the  court  that  the  same  be  and  it  is  hereby  approved  and  confirmed, 
and  said  receiver  is  hereby  ordered  upon  receipt  by  him  of  the  purchase 
money  for  said  real  estate  and  other  property,  to  convey  said  real  estate 
to  said  purchaser,  C.  F.  J.,  and  also  to  deliver  to  him  said  other 
property,  said  real  estate  so  sold  and  to  be  so  conveyed  to  said 
purchaser,  C.  F.  J.,  being  bounded  and  describ  "  as  follows:  (Here 
describe  it). 

It  is  further  ordered  by  the  court  that  said  receiver  hold  said  funds 
arising  from  the  sale  of  said  real  estate  and  other  property  subject 
to  the   further  order   of  this   court. 

No.  245.     Receiver's  deed  for  real  estate. 

Know   all  Men   By   These   Presents,   That    whereas,  on   the  


day  of  ,  A.   D.    19 ,  C.  F.  J.,  as  plaintiff,  filed  his  certain 

petition,  and  then  and  thereby  commenced  a  civil  action  in  the  Court 

of    Common    Pleas    of    County,    Ohio,    against    The    

Company,   defendant,    and   numbered   on   the   docket  of   said   court  as 

cause  No.  ,  praying,  among  other  things,  for  the  appointment  of 

a  receiver  to  take  charge  and  control  of  the  real  estate  and  all  other 
property  and  assets  of  said  company,  and  that  said  real  estate  and 
other  property  of  said  company  be  sold,  and  the  proceeds  thereof  be 
paid  to  its  creditors;   and 

Whereas,   Such   proceedings   were   had   in   said  action   that  by  tne 

consideration    and    judgment    of   said    court,   ,    on    the    , 

day    of    .    19 ,    was    appointed    receiver    of    all    the    debts, 

property     equitable    interests,    and    things    in    action    belonging    to    I'.ie 

said  The Company,  and  ordered  to  proceed  with  the  discharge 

of  said  trust,   subject  to  said  order  of  appointment  and  the   further 


MERWTNE   ON    REAL    ACTIONS.  356 

orders  and  directions  of  said  court,  and  that  before  entering  upon 
my  duties  as  such  receiver,  I  gave  bond  as  in  said  order  provided;  and 

Whereas    I,  as  receiver,  on  said  day  of ,  19 ,  gave 

said  bond  and  duly  qualified  as  said  receiver  and  took  possession 
of  all  of  the  real  and  personal  property  of  said  company;    and 

Whereas,  On  the  day  of  ,  19 ,  I,  as  said  receiver, 

filed  in  said  cause  an  application,  petitioning  and  asking  said  court 
for  an  order  to  sell  the  real  and  personal  property  of  said  company 
and  for  the  appointment  of  appraisers  to  appraise  the  same,  and  the 
court  on  consideration  of  said  application,  found  that  it  would  be 
necessary  to  sell  the  real  estate  and  personal  property  of  said  com- 
pany to  pay  its  debts  and  appointed  appraisers  to  appraise  the  same, 
and  ordered  me,  as  said  receiver,  to  cause  said  appraisement  to  be 
made;   and 

Whereas  I,  as  said  receiver,  in  pursuance  of  said  orders,  caused 
said  real  and  personal  property  of  said  company  then  in  my  possession 
to  be  appraised  by  said  appraisers  and  filed  my  report  thereof  in  said 

court  on  the  day  of  ,   19 ;   and 

Whereas,  On  the day  of ,  19 ,  said  court  approved 

and  confirmed  said  appraisement,  and  such  further  proceedings  were 

had  on  the  day  of  ,  19 ,  in  said  cause  that  it  was, 

among  other  things,  ordered,  adjudged  and  decreed  by  said  court 
that  I,  as  said  receiver,  proceed  to  advertise  said  premises  and  personal 
property  described  and  enumerated  in  said  appraisement  for  sale,  by 

publication  in  newspapers  of  general  circulation  in  

County,  Ohio,  on  and  days  of  each  week  until  the 

day  of ,  19 ,  and  that  I  then  proceed  to  sell  the  same 

at  public  auction  at  the  court  house  of  said  county,  on  the  day 

0f  1  at  o'clock  — m.,  at  not  less  than  two-thirds  of  the 

appraised  value  thereof,  and  for  cash,  and  in  parcels  and  manner 
as  in  said  order  directed;  and 

Whereas    I,  as  receiver,  having  advertised  the  time  and  place  and 

manner  and  terms  of  said  sale  in  the and ,  newspapers 

of  general  circulation  of  said  County,  Ohio,  on  the  dates  and 

in  the  manner  as  directed  in  said  order  for  sale,  and  having  otherwise 

in  all  respects  complied  with  said  order  for  sale,  I  did    on  said  

day  0f  (  19 .,  offer  for  sale,  and  sold  at  public  auction  at 

the  court  house  of  County,   Ohio,   certain   property  of  said 

company  in  said  order  of  sale  described,  and  at  which  sale  the  premises 
hereinafter  described  were  by  me,  as  said  receiver,  struck  off  and  sold 

to  C.   F.  J.   for  the  sum  of  $ ,   said  sum   being  two-thirds  of 

the  appraised  value  thereof,  and  the  only  offer  made  therefor;  and  filed 

my  report  of  said  sale  in  said  court  on  the  day  of  , 

19 ;  and 

Whereas,  Said  court,  on  the  day  of  ,  19 ,  having 

examined  my  said  report  of  said  sale  and  proceedings  as  receiver  and 
having  found  that  said  sale  had  been  made  by  me  in  all  respects  accord- 
ing to  law,  and  the  orders  of  said  court,  the  same  was  by  said  court 
approved  and  confirmed,  and  I,  as  said  receiver,  as  aforesaid,  was  by 


357  FORMS. 

said  court  ordered  upon  receipt  by  me  of  the  purchase  money  of  said 
real  estate  by  me  sold  to  said  C.  F.  J.  to  convey  said  real  estate  to 
said  purchaser,  C.  F.  J.,  and  to  deliver  to  him  possession  of  said 
property;  all  of  which  will  more  fully  appear  by  the  records  of  said 
court,  to  which  reference  is  hereby  made. 

Now   Therefore    I,  ,  as  receiver  of  the  said  Company, 

by  virtue  of  the  powers  in  me  vested  by  law  and  of  the  statutes  in 
such  case  made  and  provided,   and   in  consideration   of  the   premises, 

and  in  consideration  of  the  sum  of  $ ,  the   receipt  whereof  is 

hereby  acknowledged,  and  under  and  by  virtue  of  the  orders  of  said 
court,  do  hereby  give,  grant,  bargain  and  sell  and  convey  unto  the 
said  C.  F.  J.,  his  heirs  and  assigns  forever,  all  of  the  estate,  title  and 

interest  of  the  said  The  Company   in   and   to   the   following 

described  real  estate,  situated  in  the  County  of  and  State  of 

Ohio,  and  in  the  City  of  ,  and  bounded  and  described  as  fol- 
lows:     (Here  describe  real  estate). 

To  Have  and  to  Hold  the  same,  with  all  the  privileges  and  appur- 
tenances thereunto  belonging,  to  said  C.   F.  J.,  his   heirs  and  assigns 

forever  as  fully  and   completely   as   I,   the  said  receiver,   as 

aforesaid,  by  virtue  of  said  judgments,  orders,  rights,  order  of  sale, 
confirmation  thereof  and  recorded  herein  and  of  the  statutes  made 
and  provided  for  such  cases,  might  or  should  bell  or  convey  the  same. 

In  Witness  Whereof,  I,  as  receiver  of  The  Company,  as 

aforesaid,  have  hereunto  set  my  hand  this day  of ,  19 . 


As  Receiver  of  Company. 

Signed  and  acknowledged  in  the  presence  of 


State  of  Ohio,  County,  ss.: 

Before   me,    a   Notary   Public     in    and    for    said    county,    personally 

appeared  on  this  day  of  ,  19 ,  the  above  named 

,    who    acknowledged   that   he   had   signed   the   foregoing   deed 

as    receiver    of    Company     aforesaid,    and    that    the    signing 

of  the  same  is  his  free  act  and  deed,  as  such  receiver,  for  the  uses 
and  purposes  therein  mentioned. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  official 
seal  on  this  day  of ,  19 . 


Notary  Public.   County,   Ohio. 


CHAPTER  IX. 

PROCEDURE  BY  WHICH  TRUSTEE  IN  BANKRUPTCY 
SELLS  REAL  ESTATE  AT  PRIVATE  SALE. 


SECTION.  SECTION. 

292.  The  source  of  the  trustee's  au-       294.     The  manner  in  which  the  sale 

thority  to  sell.  is   conducted. 

293.  The  appraisal   of   the   real   es- 

tate. 

Sec.  292.     The  source  of  the  trustee's  authority  to  sell. 

In  every  case  where  real  estate  of  a  bankrupt  is  to  be  sold 
under  the  national  bankruptcy  act,  the  petition  and  schedules 
must  have  been  filed  and  all  of  the  procedure  of  the  act  com- 
plied with  up  to    and  including  the  appointment  of  a  trustee. 

Under  the  present  bankruptcy  law,  the  power  of  the  trustee 
is  derived  from  the  authority  given  the  trustee  to  collect  and 
reduce  to  money  the  property  of  the  estate.1 

Sec.  293.     The  appraisal  of  the  real  estate. 

The  real  estate  of  the  bankrupt  must  be  appraised.  The 
number  of  appraisers  must  be  three,  and  they  must  be  dis- 
interested. 

The  appraisers  must  be  sworn,  as  in  other  cases,  and  they 
must  return  their  appraisement  to  the  court.2 

Sec.  294.     The  manner  in  which  the  sale  is  conducted. 

The  sale  can  be  had  at  either  public  or  private  sale.  Such 
sale  is  entirely  under  the  direction  of  the  court.     The  trustee, 

i  Sec  47  of  the  bankruptcy  act  of  direction  of  the  court,  and  proscribe 

1898.     It   is  said  by  Black  on   Bank-  the  manner  and  effect  of  such  sales." 

ruptcy,   that    '-The  bankrupt   law   of  Black   on  Bankruptcy,   150. 

1867     conferred     express     authority  2  Sec.     70B     of     the      Bankruptcy 

upon    assignees    in    bankruptcy    to  Act.     Sec  No.  246  for  form  for  or- 

make  sales  of  real  and  personal  ea-  dor  of  court  appointing  appraisers, 

fcates,   either   on   their   own    motion.  See  No.   247   for   form   of   the  oath 

in   certain    cases,   or   by   order    and  and   return   of   the   appraisement. 

358 


359 


REM.    ESTATE    AT    I'KIVATE   SALE. 


&294 


when  a  sale  is  desired,  files  his  petition  in  the  ease,  asking  Cor 
authority  to  sell.  The  sale  can  not  be  for  less  than  three- 
fourths  of  the  appraisement.3 

The  sale  can  be  made  subject  to  the  wife's  dower  and  to  liens 
and  incumbrances.  This  sale  subject  to  incumbrances  is  usually 
asked  when  the  liens  and  incumbrances  amount  almost  to  the 
value  of  the  real  estate,  and  there  is  not  much  to  be  gained 
by  the  sale  for  the  creditors.  However,  the  power  to  sell  real 
estate  is  discretionary,  and  it  may  or  may  not  be  exercised, 
as  the  court  may  deem  proper.  It  sometimes  happens  that  the 
real  estate  is  not  sold  and  the  lienholders  are  left  to  work  out 
their  rights  in  the  State  courts.4 

But  the  usual  and  better  way  is  for  the  court  or  the  referee 
to  sell  the  real  estate  free  of  dower  and  of  every  lien  and  in- 
cumbrance, as  is  done  in  the  State  courts.  In  such  instances. 
as  is  the  case  in  the  State  courts,  the  liens  and  various  claims 
will  attach  to  the  fund  for  distribution.  The  sale  can  not  he 
made  even  in  this  manner  if  such  sale  will  result  in  injury  to 
the  general  creditors  or  to  the  injury  of  a  lienholder.8 


3  Sec.  700.  Bankruptcy  Act.  See 
No.  248  for  form  of  petition  to  sell 
real  estate  at  private  sale  subject 
to  liens  and  incumbrances.  See  No. 
24!)  for  form  for  order  for  sale  of 
real  estate  at  private  sale.  See  Xo. 
250  for  cider  confirming  .sale  of  real 
estate  at  private  sale.  See  Xo.  251 
for  form  of  petition  for  sale  of  real 
estate  at  public  auction.  Sih>  No. 
252   for   order   of   court  authorizing 


sale  at  public  auction,  sn'vject  to 
liens.  See  No.  255  for  deed  by  trus- 
tee to  purchaser  of  real  estate 

*  See  5  Cyc.  .'5S."{,  citing  Sessions 
v.  Rsmodka,  1  15  I  .  S.  2!);  Spar- 
hawk  v.  Ycrkcs,  1  12  IT.  S.  1  :  <  Manny 
v.  Langdon,  98  I  .  S.  20;  In  re 
Cogly,  107  Fed.  73;  5  Am.  Hank. 
Rep.  731. 

b  in  re  Styer,  98  Fed.  Rep.  — ;  3 
Am.   Bankruptcy   Rep.   424. 


FORMS. 


PROCEDURE  BY  WHICH  A  TRUSTEE  IN  BANKRUPTCY 
SELLS  REAL  ESTATE  AT  PRIVATE  SALE. 


FORMS.  rOBMS. 

240.     The    order    of    the    court    ap-  252.     The    order    of    the    court    au- 

pointing   appraisers.  thorizing     sale     at     public 

247.  The    oath    of    appraisers,    the  auction. 

appraisement  and  return  of  253.     The   petition  for   sale   of  real 

the   appraisers.  estate     at     public     auction 

248.  The    petition    to    sell    real    es-  subject    to    liens. 

tate    at    private    sale,    sub-  254.     The   order   and    decree   of   tie 

ject  to  incumbrances  court       authorizing       sucu 

249.  The   order   to    sell    real  estate  sale. 

at   private    sale    subject   to  255.     The  deed  from  the  trustee  to 

incumbrances.  the    purchaser    at    trustee's 

250.  The     entry     confirming     such  sale  of  real  estate  in  bank- 

sale,  ruptcy. 

251.  The   petition  for   sale   of   real 

estate  by  public  auction. 

No.  246.     The  order  of  the  court  appointing  appraisers. 


In   the   Distbict  Court  of  the  United   States   for  the  

District   of  Ohio  Division. 

In  the  matter  of 

Bankrupt.  No- 

In  Bankruptcy. 

This  day  came  the  trustee  in  bankruptcy  and  represents  to  the 
court  that  it  is  necessary  to  a  complete  settlement  of  the  estate 
that  the  interest  of  the  bankrupt  in  the  real  estate  set  forth  in  the 
schedule  filed  herein  should  be  appraised,  and  asked  that  the  court 
appoint  three  appraisers. 

Upon   consideration   whereof   the    court   hereby   appoints   , 

■ and  to  act  as  such  appraisers. 

Referee  in  Bankruptcy. 
360 


361  FORMS. 

No.  247.     The  oath,  the  appraisement  and  return  of  the  ap- 
praisers. 


In  the  District  Court  of  the  United  States  for  the 
District   of  Ohio  Division. 

In  the  matter  of 


Bankrupt.  No.  

In  Bankruptcy. 

,    and being   first    duly    sworn,    say    that 

they  will  honestly  and  truly  appraise  the  real  estate  belonging  to 
the  within  bankrupt  to  the  best  of  their  ability  and  make  due  return 
thereof  to  the  court.  , 


Sworn    to   by   the   said   ,   and    and    by 

them  subscribed  in  my  presence  this  day  of ,  19 . 


Notary  Public,  County,   Ohio. 

We,  the  undersigned  appraisers  in  the  above  entitled  cause,  hereby 
represent  to  the  court  that  we  personally  inspected  and  viewed  the 
premises  belonging  to  the  bankrupt,  to-wit:  (Here  describe  said  real 
estate)   and  we  do  hereby  fix  the  value  of  the  same  at  $ . 


No.  248.     The  petition  to  sell  real  estate  at  private  sale. 

In  the  District  Court  of  the  United  States   for  the  — 
District   of   Ohio  Division. 


In  the  matter  of 


Bankrupt.  No. 


In  Bankruptcy. 

Respectfully    represents    ,    the    duly    appointed    trustee    of 

the  estate  of  the  aforesaid  bankrupt,  that  the  following  described 
real  estate  mentioned  and  set  forth  in  the  schedule  of  said  bankrupt 
(Here  describe  it)   be  sold. 

Said  trustee  asks  that  the  same  be  sold  at  private  sale  for  the 
following    reasons,    to-wit:     said    real    estate    has    been    appraised    at 

% and  there  is  a  mortgage  of  % against  said   real   estate, 

together    with    interest    thereon    from    the   day    of   , 

19 ;    that   there    is    also    a   lien    for    taxes   on    said    real    estate    in 

amount  more  than  the  sum  of  $ ;   that  one  has  offered 

to  pay  to   the  said   trustee   the  sum   of  % for  said    real   estate, 

and  agrees '  to  assume  and  pay  said  mortgage,   taxes,  assessment  and 


MEUWTNE   ON    REAL    ACTIONS.  362 

penalties  charged  as  a  lien  thereon,  and  that  it  would  be  impossible, 
in  the  opinion  of  your  trustee,  to  sell  said  real  estate  in  the  open 
market  for  more  than  sufficient  to  pay  the  liens  against  the  same, 
and  respectfully  represents  that  it  is  desirable  and  for  the  best  in- 
terests of  the  estate  to  sell  at  private  sale  said  real  estate  as  aforesaid. 

Wherefore    he   prays   that  he  may   be  authorized   to  sell  said   real 

estate   at    private    sale   to    said for   the    sum    of    $ on 

the  assumption  by  said  purchaser  of  said  mortgage,  taxes,  assess- 
ment and  penalties. 

Dated   this   day   of   ,   19 . 


Trustee. 

State  of  Ohio,  County,  ss.: 

,   being  duly  sworn,  says  that  he   is  the   trustee  aforesaid 

and  that  the  allegations  contained  in  the  foregoing  petition  are  true 
as   he  verily    believes. 


Sworn  to  before  me  and  subscribed  in  my  presence  this 
day  of  ,  A.  D.  19 . 


Notary  Public. 

No.  249.     The  order  to  sell  real  estate  at  private  sale. 

This  day  this  cause  came  on  to  be  heard  upon  the  application 
of  the  trustee  herein  for  permission  to  sell  the  real  estate  hereinafter 

described  at  private  sale  to  at  terms  hereinafter  S9t  out,  and 

the  same  was  submitted  to  the  court  upon  said  application  and 
the  evidence,  and  the  court  finds  that  said  real  estate  was  appraised 
at  $ ;  that  the  same  is  mortgaged  to  the  sum  of  $ ,  to- 
gether with  interest  on  said  sum  from  the  day  of . 

19 ;    that  it  will  be  difficult,  if  not  impossible,  to  find  a  purchaser 

for  such  an  interest  so  incumbered,  that  the  same  cannot  be  sold 
at  public  sale,  and  that  it  is  to  the  interest  of  said  estate  to  accept 

the  offer  of  said  ,  to-wit:  to  take  said  interest  of  said  

and   to   pay   the   said  ,   trustee   therefor,    the   sum    of    $ 

in  the  manner  following,  to-wit:    for  cash;    also  said  is  also 

to    pay   any   penalties   that  may  be   added   to   said  taxes. 

The  application  of  said  trustee  is  therefore  granted  and  said  trustee 

is    hereby    ordered    to    convey    to    the    said    at    private    sale, 

on    the    terms    hereinabove    set   out,   all    the    right,    title    and    interest 

of    the    said    ,    trustee    in    bankruptcy     of    the    said    

bankrupt,  and   all   the   right,   title   and   interest  of   the  said   , 

bankrupt,   of,    in   and  to   the   following   described    real   estate   situated 

in  the  County  of  in   the   State  of  Ohio,   and   in  the  City  of 

and  bounded  and  described   as   follows:      (Here  describe  it). 

And  said  trustee  is  ordered  to  report  his  proceedings  thereunder 
to  this  court. 


363  FORMS. 


No.  250.     The  entry  confirming  said  sale. 

Ii;   the   District  Court  of  the  United  States   for  the 
District   of   Ohio   Division. 

In  the  matter  of 


Bankrupt.  No. 


In  Bankruptcy. 

Now  comes ,  trustee  in  bankruptcy  of  the  estate  of , 

bankrupt,  and   respectfully  represents  to  the  court  that  in  pursuance 

to  an   order  of  court  hereinbefore  made,   he   has  sold  to  at 

private  sale,  said  real  estate  described  in  the  petition  herein,  and 
it  appearing  to  the  court  upon  the  examination  of  the  proceedings 
of  said  trustee  in  connection  with  said  sale  of  said  real  estate  that 
said  sale  has  been  made  in  strict  accordance  with  the  law  and  the 
orders  of  this  court,  the  said  sale  is  therefore  approved  and  confirmed, 

and   the   said  trustee,   is  ordered   to    execute   and   deliver   to 

the    purchaser,    ,    upon    his    compliance    with    the    terms    of 

sale,  a  proper  deed  of  the  real  estate  so  by  him  sold  as  aforesaid. 

No.  251.     Petition  for  sale  of  real  estate  at  public  sale. 

In  the  District  Court  of  the  United  States   for  the  

District   of   Ohio  Division. 

In  the  matter  of 


Bankrupt.  No.  ■ 

In  Bankruptcy. 

Respectfully    represents    ,    trustee    of    the    estate    of    said 

bankrupt,  that  it  would  be  for  the  benefit  of  said  estate  that  a  certain 
portion  of  the  real  estate  of  said  bankrupt,  to-wit:  (Here  describe 
it    and    its    estimated    value)    should    be    sold    <~t    auction,    in    lots    or 

parcels,  and  upon  terms  and  conditions    as  follows:   

— .      Wherefore  he   prays   that  he  may 

be  authorized  to  make  sale  by  auction  of  said  real  estate  as  aforesaid. 

Dated  this  day  of  ,  A.   D.    19 . 


Trustee. 

No.  252.     The  order  of  the  court  authorizing  sale  at  public 
auction. 

The  foregoing  petition  having  been  duly  filed,  and  having  come 
on  for  a  hearing  before  me,  of  which  hearing  ten  days*  notice  was 
given  by  mail  to  creditors  of  said  bankrupt,  now,  after  due  hearing, 

no  adverse  interest  being  represented  thereat  (or  after  hearing 

in  favor   of   said   petition   and   in   opposition    thereto),    it    is 

ordered    that    the   said   trustee   be   authorized   to   sell   the   portion,    by 


MERWINE   ON    REAL    ACTIONS.  364 

auction,  keeping  an  accurate  account  of  each  lot  or  parcel  sold  and 
the  price  received  therefor  and  to  whom  sold;  which  said  account  he 
shall  file  at  once  with  the  referee. 

Witness  my  hand  this  day  of  ,  A.  D.  19 . 


Referee  in  Bankruptcy. 


No.  253.     Petition  and  order  for  sale  subject  to  lien. 

In  the  District  Court  of  the  United  States   for  the 
District  of  Ohio  Division.- 

In  the  matter  of 


Bankrupt.  No. 


In  Bankruptcy. 

Respectfully    represents    ,    trustee    of    the    estate    of    said 

bankrupt,  that  a  certain  portion  of  said  bankrupt's  estate,  to-wit: 
(Here  describe  the  estate  or  property  and  its  estimated  value)  is 
subject  to  a  mortgage  (describe  mortgage),  or  to  a  conditional 
contract  (describe  it),  or  a  lien  (describe  the  origin  and  nature 
of  the  lien),  or  (if  the  property  be  personal  property)  has 
been  pledged  or  deposited  and  is  subject  to  a  lien  for  (describe 
the  nature  of  the  lien),  and  that  it  would  be  for  the  benefit  of  the 
said  estate  that  said  property  should  be  sold,  subject -to  said  mortgage, 
lien,  or  other  incumbrance.  Wherefore  he  prays  that  he  may  be 
authorized  to  make  sale  of  said  property,  subject  to  the  incumbrance 
thereon. 

Dated  this  day  of  ,  A.  D.  19 . 


Trustee. 

No.  254.     The  order  and  decree  of  the  court  authorizing  such 
sale. 

The  foregoing  petition  having  been  duly  filed  and  having  como 
on  for  a  hearing  before  me,  of  which  hearing  ten  days'  notice  was 
given  by  mail  to  creditors  of  said  bankrupt,  now,  after  due  hearing, 

no  adverse  interest  being  represented  thereat  (or  after  hearing 

in    favor   of   said   petition    and  in   opposition   thereto),    it   is 

ordered  that  the  said  trustee  he  authorized  to  sell  the  portion  of 
the  bankrupt's  estate  specified  in  the  foregoing  petition,  by  auction 
(or,  at  private  sale),  keeping  an  accurate  account  of  the  property 
sold  and  the  price  received  therefor  and  to  whom  sold;  which  said 
account  he  shall  file  at  once  with  the  referee. 

Witness  my  hand  this  day  of  ,  A.  D.   19 . 


Referee  in  Bankruptcy. 


365  FORMS. 

No.  255.    Deed  by  trustee  to  purchaser. 

Know  all  Men  by  These  Presents,  That   whereas,  on  the  

day    of   ,    19 ,    was    duly    adjudged    bankrupt    by 

the  District  Court  of  the  United  States  for  the  District  of  Ohio, 

Division,    and    the    said    was    duly    appointed    and 

qualified  as  trustee  of  the  estate  of  the  said  in  bankruptcy, 

and  is  now  acting  as  said  trustee,  and  on  the day  of , 

19 ,  said  trustee  filed  a  certain   petition  in  said  District  Court  of 

the  United  States  for  the  District  of  Ohio,  Division, 

praying,  among  other  things,  for  an  order  of  sale  for  said  real  estate 
therein  mentioned  and  hereinafter  described;    and 

Whereas,    proceedings    were    had    on    said    petition    in    accordance 
with   the   bankruptcy   laws   of  the   United    States   in   such   case   made 

and  provided,  and  the  petition  coming  on  for  hearing  on  the 

day  of  — ,  19 ,  of  which  hearing  ten  days'  notice  had  been 

given  by  mail  to  said  creditors  of  said  bankrupt,  it  was  ordered  that 
said  trustee  be  authorized  to  sell  the  portion  of  the  bankrupt's  estate 
specified  in  his  petition  and  hereinafter  described,  at  private  sale, 
keeping  an  accurate  account  of  the  property  sold,  and  the  price  received 
therefor,  and  to  whom  sold,  and  on  the  same  day  in  pursuance  of 
said  order  and  judgment,  an  order  of  sale  of  said  real  estate  therein 
described  was  issued  out  of  said  court  under  the  seal  thereof  to  said 

trustee  of  the  estate  of  in  bankruptcy,  as  aforesaid 

directed,  commanding  him  to  execute  the  said  order,  and  of  the  same, 
together  with  his  proceedings  thereon,  to  make  due  return  to  said 
court:  and 

Whereas,    said    ,    trustee    of    the    estate    of    in 

bankruptcy,    having    caused    said    premises    to   be    appraised   and    the 

report   of    said    appraisement   to   be   filed   with ,    the    referee, 

and  having  on   the   day   of  ,    19 ,    returned   said 

order  of  sale  to  said  court,  as  commanded,  with  the  proceedings 
thereon,  stating  in  substance  that  in  obedience  to  said  order  he  sold 

the    same    to    which    was    the    best    price    he    could    get    for 

same,  and  being  more  than  seventy-five  per  cent,  of  the  appraised 
value   of   said   premises,    he    then   and   there   sold   the   same   to   said 

for  said  sum;    and 

Whereas,  on  the  day  of  ,  19 ,  the  said  court 

having  examined  the  proceedings  of  the  said  sale  aforesaid,  under 
said  order  of  sale,  and  it  appearing  to  the  court  that  said  sale  was 
in  all   respects  legally  made,  ordered  that  the  same  be  approved  and 

confirmed,    and     that    said    ,     trustee,    as     aforesaid,     should 

execute  and  deliver  a  proper  deed  to  the  purchaser  of  the  real  estate 
so  sold,  all  of  which  will  more  fully  appear  by  the  record  of  said 
court,  to  which  reference  is  here  made; 

Now     Therefore     I,    the    said    trustee    of    the    estate    of 

in    bankruptcy    aforesaid,   by   virtue   of  said   order   of   sale, 

sale  and  confirmation,  and  of  the  statute  in  such  case  made  and 
provided,  and  of  the  powers  vested  in  me  and  for  and  in  consideration 


MERWINE   ON    HEAL,   ACTIONS.  366 

of  the   premises,  and      the  sum   of   $ paid  to  me  by   the  said 

,  the  receipt  whereof  is  hereby  acknowledged,  do  hereby  grant, 

bargain,   sell  and  convey  to  the  said   his  heirs  and  assigns 

forever  the  following  real   estate  situated   in  the  County  of  ■ 

in  the  State  of  Ohio  and  in  the  City  of  :      (Here  describe  real 

estate   in  question  ) . 

To  Have  and  to  Hold    said   premises   with  all   the  privileges   and 

appurtenances    thereunto    belonging    to    said    ,    his    heirs    and 

assigns  forever,  as  fully  and  completely  as  he,   the  said  ■ ,  as 

such  trustee  in  bankruptcy,  by  virtue  of  said  order  of  sale,  sale  and 
confirmation,  and  of  the  statute  made  and  provided  in  such  cases, 
might  and  should  sell  and  convey  the  same. 

In  Witness  Whereof,  the  said  as  such  trustee,  has  here- 
unto set  his  hand  this  day  of  ,  A.  D.  19 . 


Trustee  of  the  estate  of  ,  Bankrupt. 

Signed   and  acknowledged  in   the  presence  of 


The  State  of  Ohio,  County,  ss.: 

Be  it  Remembered,  That  on  this  day  of  ,  19 , 

before    me    the    subscriber,    a   notary    public    in   and    for   said   county, 

personally   came   the  above   named  ,   as  trustee   of  the   estate 

of   in    bankruptcy,    the    grantor    in    the    foregoing    deed    and 

acknowledged  the  signing  of  the  same  to  be  his  voluntary  act  and 
deed  as  such  trustee  for  the  uses  and  purposes  therein  mentioned. 

In  Witness  Whereof,  I  have  hereunto  subscribed  my  name  and 
affixed   my   official   seal  on   the    day  and  year   last  aforesaid. 


Notary  Public,  County,  Ohio. 


CHAPTER  X. 


SALE  OF  REAL  ESTATE  IN  PARTITION. 


SECTION. 

295.  Nature    of    the    proceedings — 

Equitable  and   statutory. 

296.  Amicable   partition. 

297.  Partition  may  be  made  by  pa- 

rol. 

298.  Written  agreement  for   parti- 

tion. 

299.  One  tenant  can  not  effect  par- 

tition by  deed  conveying 
his  interest  by  metes  and 
bounds. 

300.  Joint  tenancy  does  not  obtain 

in   Obio. 

301.  Disputed    title    can   be    deter- 

mined by   partition. 

302.  Will       may       be     "construed. 

course  of  descent  and  le- 
gality of  bequest  deter- 
mined in  partition. 

303.  Partition  creates  no  new  title. 

304.  Construction    of    partition    by 

mutual    releases. 

305.  Applicant  for    partition   must 

be  in  actual  or  construct- 
ive  possession. 

306.  Several  estates,  part  of  which 

under  life  leases,  part  of 
which  not  —  Part  can  be 
partitioned    and  part   not. 

307.  Remaindermen     or     reversion- 

ers can  not  have  partition, 
life  estate  outstanding, 
when. 

308.  Title    of    demandant    must   l>e 

alleged   and   proved. 

309.  Who    may    have   partition. 

310.  When    partition    can    not    be 

had — Where  the  action 
must   be   brought. 

311.  Who  may  file  petition  for  par 

tition. 

312.  The  order  of  partition. 

313.  The  writ  of  partition. 

367 


make 


315. 


316. 


317. 


SECTION. 

314.     Commissioners      shall 
partition,   how. 

How  partition  made  when 
more  than  one  tract  .to  be 
partitioned. 

Commissioners  to  appraise 
land  when  they  can  not  di- 
vide it — Election  of  par- 
ties to  take  at  appraise- 
ment. 

Terms  of  payment  when  es- 
tate Laken  by  party — Exe- 
cution of  conveyances. 
318.  Sale  of  the  estate  when  par- 
ties do  not  elect  to  take  the 
same. 

How  such  sale  conducted  and 
the  terms  thereof. 

Confirmation  of  sale  and  exe- 
cution  of   conveyances. 

Distribution  of  proceeds — 
Sheriff's  liability. 

Proceedings  when  the  estate 
has  been  once  offered  and 
not  sold. 

When  successor  of  sheriff  who 
made  sale  to  execute  con- 
veyances. 

When  widow  is  entitled  to 
dower,  or  an  interest  is 
subject   to  a    life  estate. 

Commissioners  appointed  to 
partition  the  estate  to  as- 
sign dower. 

Partition — Power  of  guardian 
to   act   for  ward. 

Powers  of  foreign  guardian. 

Action       by       one       parcener 
against    another    for    rents 
and   profits. 
329.     Rents    and    crops — Apportion- 
ment in  case  of  sale. 


319. 


320. 


321. 


322. 


323. 


324. 


325. 


326. 

327. 

328. 


§295 


MERWINE   ON    REAL   ACTIONS. 


368 


SECTION. 

330.  Absence   of   seven   years,   pre- 

sumption as  to — Purchaser 
entitled  to  improvements, 
when. 

331.  Partition   of   property  belong- 

ing to  religious  corpora- 
tions. 

332.  When    such    partition   can   be 

made   and  effect  thereof. 

333.  Costs     and     expenses     to     be 

equitably  taxed  in  parti- 
tion  proceedings. 

334.  Certificate    from    court — Par- 

tition and  deficiency  of  as- 
sets. 

335.  Court  shall  order  proceeds  of 

partition  proceedings  to  be 
paid  over  to  executor  or  ad- 
ministrator, when. 

336.  Partition  can  not  be  had  with- 

in a  year  from  death  of 
decedent,   when. 

337.  Advancement  —  Hotchpot    in 

Partition. 

338.  Advancement   by  an   intestate 

to  be  considered  a  part  of 
the  estate. 


SECTION. 

339.  When     the     advancement     is 

greater    or    less    than    the 
heir's  share. 

340.  When     the     advancement     is 

wholly  real  or  personal  es- 
tate. 

341.  When    value    of    advancement 

expressed  in  deed. 

342.  Judgments    in    partition    can 

not  be  collaterally  assailed. 

343.  Lien  against  co-tenant  attach- 

es to  share  set  off  to  him 
in  severalty  by   partition. 

344.  Rights  of  a  joint  owner  who 

pays  his  portion  of  a  tax — 
Those  not  paying  held  lia- 
ble as  if  partition  had  not 
been  made — A  tax  on  lands 
sold  at  judicial  sale  to  be 
paid  out  of  proceeds  of 
sale — Part  owner  paying 
.  tax  on  whole  tract  shall 
have  lien. 

345.  Purchasers    may    have    parti- 

tion as  in  other  cases. 

346.  Appeal    and    error    in    parti- 

tion. 


Sec.  295.    Nature  of  the  proceeding — Equitable  and  statutory. 

The  procedure  whereby  the  share  of  one  of  the  several 
owners  of  real  estate  in  common  is  set  off  to  him  in  severally 
by  the  courts,  may  be  either  a  proceeding  in  chancery,  or  it 
may  be  a  statutory  proceeding.  While  the  distinction  between 
the  proceeding  in  chancery  and  the  proceeding  under  the 
statute  is  well  defined,  yet  the  distinction  is  not  a  mat- 
ter of  much  importance  to  the  practitioner.  Especially  is  this 
so  since  both  are  worked  out  by  the  same  court.  But  cases 
have  arisen  in  the  practice  in  partition  proceedings  where  it 
was  necessary  for  the  courts  and  those  conducting  the  cases  to 
know  the  distinction. 

In  cases  where  the  title  is  in  question  and  equitable  rights 
are  involved,  it  is  the  chancery  side  of  the  court  that  is 
appealed  to  for  the  partition.  The  partition  statutes  have 
in  nowise  abridged  the  equitable  powers  of  the  chancellor 
in  partition   proceedings. 

At  law,  in  partition,  the  sheriff  could  only  award  an  actual 
division    of    the   land.      Inequality    in    the    ownership    of   the 


369 


SALE    OF    REAL    ESTATE    IN*    PARTITION. 


§295 


lands  could  not  be  adjusted,  especially  in  cases  where  com- 
pensation was  necessary  to  do  exact  justice  to  the  co-owners. 
Later,  when  a  parent  had  given  lands  or  money  to  a  child 
as  a  portion  of  his  estate,  equitable  interference  became  neces- 
sary to  do  exact  justice  to  all  of  his  children  in  the  final 
distribution  of  his  real  estate.  In  such  cases  courts  of  equity 
awarded  owelty  of  partition.  As  in  almost  every  case  of 
the  origin  of  an  equitable  remedy,  equitable  partition  grew 
out  of  the  demands  of  justice.1 

The  power  of  the  chancellor  is  far-reaching  in  equitable 
partition.  It  has  been  well  said  by  an  eminent  jurist  in  this 
State  that  equity  courts  have  long  exercised  the  power  to 
decide  finally  upon  the  rights  of  adverse  claimants  to  real 
estate  where  the  nature  of  the  controversy  properly  called 
for  the  interference  of  a  chancellor. 

A  bill  to  establish  and  enforce  a  trust  gave  him  jurisdiction 
to  hear  and  determine  its  existence  and  extent,  and  to  enforce 
it,  in  a  proper  case,  by  compelling  a  conveyance  by  the  de- 
fendant as  trustee,  notwithstanding  his  answer  denied  the 
entire  title  of  the  plaintiff.  In  this  class  of  cases,  as  well 
as  in  a  number  of  others,  the  fact  that  a  decision  of  a  judge, 
without  a  jury,  might   divest  one  in  possession  of  the  whole 


i  Linton  v.  Laycock,  33  0.  S.  128. 

"If  this  were  a  chancery  parti- 
tion, the  rights  of  all  the  partus 
could  be  determined.  But  as  the 
proceeding  is  purely  statutory,  the 
powers  of  the  court  are  limited  by 
the  partition  statute.  Under  this 
the  court  can  order  partition,  and 
where  this  is  impractical,  and  so 
appears  from  the  report  of  the 
sheriff  and  commissioners  ap- 
pointed to  make  partition,  the 
court  may  order  a  sale.     *     *     * 

"In  a  mere  statutory  partition  pro- 
ceeding, no  question  can  arise  under 
the  homestead  act.  Xo  money  can 
be  appropriated  to  creditors  in 
such  case:  and  hence,  the  lanoruase. 
evident  purpose,  and  scope  of  the 
homestead  act  has  no  reference  to 
such  a  case  as  this. 

"The  homestead  act  beina  bene- 
ficial, is  to  be  liberally  construed, 
and    hence    a    court    of    law    would 


extend  its  protection  to  all  cases  of 
judgments,  and  in  chancery  cases 
the  court  acting  by  way  of  analogy 
to  the  statute  would,  by  decree  or 
otherwise,  secure  its  exemptions  to 
debtors  coming  within  its  letter  or 
spirit  in  all  cases  Avhere  a  home- 
stead, by  any  chancery  proceeding, 
might  be  sought  to  be  applied  t<> 
satisfy  the  claims  of  the  creditors." 
AtcMasters  v.  Smith,  5  W.  L.  M.  28. 
"The  special  statutory  mode  of 
obtaining  partition  never  was  ex- 
clusive of  that  in  equity,  by  civil 
action  under  the  code.  Partition 
was  always  a  subject  of  equity  ju- 
risdiction, especially  where  the  case 
involved  the  settlement  of  questions 
peculiarly  cognizable  in  courts  of 
equity."  Linton  v.  Laycock,  33  0.  S. 
129.  Under  the  old  procedure  there 
were  two  kinds  of  partition :  statu- 
tory and  equity.  Perry  v.  Richard- 
son, 27  0.  S.   110. 


§295 


MERWINE    ON    REAL    ACTIONS. 


370 


estate,  does  not  affect  the  jurisdiction.  The  principle  con- 
trolling is  well  known.  Where  a  party  can  not  have  ade- 
quate and  complete  relief  at  law,  he  may  apply  in  equity; 
and  the  chancellor  in  such  case  taking  jurisdiction,  retains 
it  so  far  as  may  be  necessary  to  furnish  relief  adequate  and 
complete.  A  careful  consideration  of  the  position  and  rela- 
tions of  tenants  in  common  of  realty  will  satisfy  the  mind 
that  when  a  co-tenant  has  gone  into  possession  and  refuses  to 
recognize  the  title  of  the  owners  of  the  other  undivided  shares^ 
an  ordinary  suit  at  law  will  not  furnish  to  them  adequate 
and  complete  relief.  In  the  Ohio  statutory  proceeding  for 
partition  the  court  could  not  exercise  chancery  or  equity 
powers,  and  was  limited  to  the  mode  and  extent  provided  by 
statute.  There  would  seem  to  be  good  reason  for  holding 
that  those  statutory  powers  could  only  be  exercised  on  behalf 
of  parties  whose  title  at  law  was  disputed.  But  a  civil  action 
seeking  equitable  partition  together  with  an  account  of  rents 
and  profits,  properly  invokes  the  chancery  powers  of  the 
court.2 

In  all  the  statutory  proceedings  in  partition  a  legal  title 
in  the  demandant  is  necessary ;  for  if  his  title  is  equitable 
merely,  the  proceeding  should  be  under  the  code  for  an  3quita- 
ble  partition.3 

In  a  very  carefully  prepared  opinion  a  nisi  prius  court 
points  out  what  may  be  done  in  a  statutory  partition  and 
what  may  be  done  in  a  chancery  proceeding  in  partition. 
In  the  former  it  is  declared  that  the  court  can  make  only 
such  orders,  judgments  and  decrees  as  are  authorized  by  the 


-Hogg  v.  Bievman.  41  O.  S.  81; 
Perry  v.  Richardson.  27   0.   S.    110. 

3  Byers  v.  Wackman.  16  0.  S. 
440.  And  for  a  case  where  de- 
mandant did  not  show  legal  or 
equitable  title,  see  Ciasely  v.  Sepa- 
ratis,  etc.,  13  O.  S.   144. 

It  has  been  held  that  "in  a  par- 
tition in  chancery,  if  the  title  in 
dispute  he  an  equitable  one,  the 
court  will  settle  it.  If  legal  or  in- 
volved in  doubt,  and  there  are  not 
<it)ier  matters  wbich  make  it  neces- 
sary to  retain  the  hill,  it  will  dis- 
miss it  :  or,  if  retained,  require  the 
parties  to  settle  the  controversy  at 
law,    before    a    decree    in    partition 


will  he  entered."  Delaney  v.  Mc- 
Fadden,  7  W.  L.  B.  207.  See  also 
Perry  v.  Richardson,  27  0.  S.  120. 
"The  effect  of  that  case,  as  well  as 
those  found  i:i  21  0.  S.  5'19.  and 
16  O.  S.  443,  is.  that  under  the 
statute,  relief  of  a  purely  equitable 
nature  can  not  be  obtained,  and  if 
sought,  it  must  be  under  the  ende: 
when  brought  under  the  code  it  is 
a  civil  action  and  appealable,  a 
thing  unknown  to  the  statutory 
proceeding  before  the  present  Re- 
vised Statutes,  however  it  may  le 
now."  Delaney  v.  McFadden,  7  W. 
L.  B.  267. 


371 


SALE    OF    REAL    ESTATE    IN    PARTITION. 


§296 


statute,  and  the  parties  by  consent  can  not  empower  the  court 
to  do  more.  In  such  statutory  partition  proceedings  the  court 
can  not  adjust  liens  or  mortgages  or  order  their  payment.4 
Aside  from  all  this  discussion  on- this  subject,  it  has  been 
doubted  by  one  of  the  judges  of  the  Circuit  Court  whether 
there  can  be  in  this  State  any  partition  proceedings  in  any 
other  court  than  a  court  of  equity.0 

Sec.  296.     Amicable   partition. 

It  is  provided  by  statute  that  after  a  petition  has  been 
filed  and  the  parties  are  in  court  and  before  a  writ  of  parti- 
tion is  issued,  the  person  of  whom  partition  is  demanded  may 
appear  in  court  in  person,  or  by  attorney,  and  consent  to  the 
partition  of  the  estate  agreeably  to  the  prayer  and  the  facts 
set  forth  in  the  petition,  which  amicable  partition,  when  made 
and  recorded,  will  be  valid  and  binding  between  the  parties 
thereto,  and  in  all  such  cases  and  in  all  eases  where  the 
lands  are  divided  by  commissioners  among  the  parties,  the 
court  is  required,  on  motion  of  any  party  in  interest,  to  order 
the  sheriff  to  execute  and  deliver  to  each  person  entitled 
thereto  a  deed  for  the  portion  set  off  and  assigned  to  such 
person. G 

It  is  only  where  the  parties  refuse  a  division  of  real  estate 
that  the  courts  are  called  upon  to  make  a  division  thereof. 
The  most  usual,  and  by  far  the  most  convenient  and  less  ex- 


«  McMastera  v.  Smith.  5  W.  L. 
M.  25.  In  the  statutory  action  for 
partition,  when  it  is  necessary  to 
secure  the  rights  of  persons  having 
mortgages  or  liens,  or  entitled  to 
a  homestead,  or  of  administrators 
when  necessary  to  sell  an  interest 
in  land  to  pay  debts,  a  petition  in 
the  nature  of  a  bill  in  chancery 
may  be  filed  to  enjoin  the  statutory 
partition:  and  on  such  petition  the 
court  will  enjoin,  and  tlien  deter- 
mine the  rights  of  the  parties  and 
order  partition  as  in  chancery,  or, 
if  necessary,  remit  the  parties  to 
their  rights  and  remedies  under  the 
statute  relating  to  homestead,  s^ile 
of  decedent's  lands  to  nay  debts 
and    the    1  i Ve.. 

"In  the  legal  or  statutory   parti- 


tion, the  parties  have  no  right  to 
recover  for  the  rents  and  profits; 
no  right  to  a  reformation  of  deeds, 
specific  performance  of  contracts, 
compensation  for  improvements,  or 
any  of  the  many  other  things  in  the 
way  of  equitable  relief  which  might 
be  obtained  in  the  equitable  suit  or 
action  under  the  code."  Delaney 
v.  McFadden,  7  W.  L.  B.   267. 

•"•  Lindsay  v.  Zanoni,  (i  C.  ('.  -177. 
wherein  it  was  said  by  Smith.  J.: 
"That  a  legal  title  is  not  necessary 
to  be  shown  in  such  case,  when  the 
action  for  partition  is  on  the  equity 
side  of  the  court,  as  is  now  the 
case,  we  think,  in  all  partition  cases 
under  our  Ohio  law." 

» Gen'l  Code,  §12304  (R.  S. 
§6761). 


§297 


MERWINE   ON    REAL    ACTIONS. 


372 


pensive  method  of  aparting  real  estate  to  the  several  owners 
in  severalty  is,  by  each  making  a  deed  to  the  other  for  his 
part  thereof.  And  the  effect  of  the  partition  by  the  court 
and  the  legal  effect  of  an  amicable  partition  is  exactly  similar 
to  the  partition  compelled  by  the  courts.  No  satisfactory 
reason  can  be  assigned  why  partition  by  metes  and  bounds 
among  tenants  in  common  by  the  interchange  of  mutual  re- 
leases, where  each  one  receives  no  more  than  his  proper  share 
of  the  land,  should  have  any  different  effect  on  the  title  from 
that  of  a  like  partition  under  the  statute.7 


Sec.  297.     Partition  may  be  made  by  parol. 

A  parol  partition  of  real  estate  if  originally  fair,  is  binding 
when  there  has  been  long  acquiescence  and  acts  of  confirma- 
tion on  the  part  of  the  parties  making  the  partition,  and 
a  wife  is  dowable  only  in  the  portion  assigned  to  her  husband 
in  the  partition.8 


t  Carter  v.  Day,  50  0.  ».  96.  In 
this  latter  case  the  court  say  that 
the  amicable  partition  in  the  man- 
ner stated  above  is  a  less  expensive 
mode  of  obtaining  the  same  result, 
and  the  difference  is  in  the  method 
only,  and  not  in  legal  consequences. 
Dawson  v.  Lawrence,  13  0.  S.  536; 
Farmer  v.  Wallis,  45  0.  S.  152; 
Waterman  v.  Waterman,  57  0.  S. 
69.  The  controlling  fact  common 
to  both  is  that  each  parcener  re- 
ceives in  severalty  no  greater  estate 
than  he  before  held  in  common. 

"A  voluntary  partition  may  be 
made  by  tenants  for  life,  holding- 
estates  in  co-tenancy  or  co-parceny; 
when  made  by  husbands,  of  wives' 
lands,  if  equal,  it  binds  the  inherit- 
ance. The  writ  de  partitions  facienda 
must  be  brought  against  such  a  ten- 
ant. It  lies  at  common  law  against 
the  tenant  by  the  curtesy,  although 
a  stranger,  and  the  benefit  of  the 
writ  was  given  to  him  by  the  stat- 
ute." Less if  Foster  v.  Execu- 
tors. 8  O.  107.  And  as  to  the  rights 
of  a  judgment  creditor  in  the  share 
of  a  tenant  in  common,  in  lands 
aparted  by  voluntary  partition,  see 
Hill  v.  .Meyers,  46  o'.  S.  183.     As  to 


construction  of  partition  deedn,  see 
Calhoun  v.  Price,   17   0.  S.  96.     As 
to  when  executors  can  make  volun- 
tary partition  under  terms  of  will, 
see   Craighead  v.  Pike,   4   Rec.    199. 
sDocterman    v.    Elder,    27    W.    L. 
B.    195;    Woodhull   v.  Longstreet,    3 
Harrison     (N.    J.),    405;     Piatt    v. 
Hubbel,  5  0.  243;   but  see  Lloyd  v. 
Cover,    1    Dutch.    47 ;     Cummins    v. 
Xutt,  Wright,   713,  which  is  to  the 
effect    that    if    parol    partition,    ac- 
companied with  nine  years'  posses- 
sion, when  division  fences  have  been 
made,  is  binding.  Williams  v.  Pope, 
Wright.    406,    in   which    "an    agree- 
ment  by   the   heirs   after   the   death 
of   their    ancestor   as    to    the    distri- 
bution   of    the    estate,    may    be    en- 
forced   in    equity."      And   upon   this 
subject,    see    Dow    v.    Jewell,    18    X. 
H.    340;    Lynch    v.    Baxter,    4    Tex. 
431;  Bryan  v.  Stump,  8  Gratt.  241; 
Hardy  v.  Somers,  10  Gill  &  J.  316; 
^IcConner  v.  Carey,  48  Pa.  St.  345; 
Durlington's     Appeal,     13     Pa.     St. 
430;    Calhoun  v.   Hays,  '8   Watts   & 
S.    127;    Mane  v.   Rider.   51    Pa.   St. 
377;    Nave   v.  Smith,    95   Mo.   596; 
Bruce    v.     Osgood,     113     Ind.     360; 
Brown  v.  Wheeler,  17  Conn.  345. 


373 


SALE  OF  REAL  ESTATE  IN  PARTITION.  §§298,  299 


Where,  upon  petition  for  partition,  commissioners  are  ap- 
pointed and  report  made,  possession  taken  in  severalty  in 
conformity  with  it,  and  improvements  made,  though  no  judg- 
ment of  confirmation  is  entered  upon  the  report,  and  although 
s  mie  of  the  parties  are  infants,  the  division  appearing  to 
be  a  fair  one,  after  a  lapse  of  several  years,  equity  will  not 
aid  to  disturb.9 

And  in  some  jurisdictions  where  the  land  was  divided, 
each  tenant  in  common  going  into  possession  of  his  share, 
and  making  improvements,  the  partition  has  been  held  good 
where  there  were  no  conveyances  and  there  was  no  judgment 
of  the  court  awarding  partition.10 

Sec.  298.     Written   agreement  for  partition. 

A  written  agreement,  entered  into  by  tenants  in  common 
for  the  partition  of  real  estate  by  metes  and  bounds  will 
be  enforced  by  a  court  of  equity.  And  it  has  been  held  in 
some  of  the  States  that  such  an  agreement  made  by  parties 
who  are  competent  to  make  such  a  contract,  will  be  valid  and 
binding  without  the  sanction  of  the  court.11 

Sec.  299.     One  tenant  can  not  effect  partition  by  deed  con- 
veying his  interest  by  metes  and  bounds. 

One  tenant  in  common  can  not  accomplish  a  partition 
by   selling   and   conveying   his   interest   to    another   by   metes 


9  Piatt  v.  Hubbel,  5  0.  243,  in 
which  the  court  said:  "It  is  evident 
that  the  partition  was  in  fact  made 
between  the  parties  in  IS  14,  which 
at  that  time  was  equal ;  and  that 
all  the  adult  parties  took  posses- 
sion of  their  respective  shares,  and 
ever  since  held  them  in  severalty, 
built  up  and  improved  them,  on  the 
faith  of  its  validity.  This  court 
in  chancery,  would  not  disturb  a 
parol  partition  originally  fair,  in 
which  there  had  been  so  long  ac- 
quiescence, and  such  acts  of  con- 
firmation." 

It  was  said  in  Gillespie's  Lessees 
v.  Johnson,  Wright,  232:  "A  doubt 
as  to  the  severance  of  a  joint  inter- 
est  in   partition    without   judgment 


of  partition  may  be  removed  by 
proof  of  possession  in  severalty  un- 
der the  partition  and  the  acquies- 
cence in  it." 

"An  agreement  by  heirs  after  tue 
death  of  their  ancestor  as  to  the 
distribution  of  the  estate,  may  be 
enforced  in  equity."  Williams  v. 
Pope,  Wright,   406. 

io  Welch  v.  Thompson  39  Ga.  559; 
Hubbard   v.  Recart,   3  Vt.  207. 

11  Upon  this  subject  see  Bonipart 
v.  Rogers,  24  Mo.  325;  Williard  v. 
Williard,  56  Pa.  St.  119:  Norwood 
v.  Norwood,  4  Har.  &  J.  112:  Coates 
v.  Street,  2  Ashm.  12;  Moore  v. 
Eagles,  1  Murph.  302;  Watersott 
v.  Finnegan,  2  R.  I.  316. 


^  300  MEEWINB   OX    REAL    ACTIONS.  374 

and  bounds.  Such  purchaser,  instead  of  taking  an  interest  by 
metes  and  bounds,  will  take  the  undivided  interest  of  his 
grantor.  The  purchaser  will  hold  the  interest  purchased  as 
tenant   in  common  with   the  original  owners.12 

Sec.  300.     Joint  tenancy  does  not  obtain  in  Ohio. 

Our  Supreme  Court  has  frequently  decided  that  joint 
tenancy  does  not  exist  under  the  laws  of  Ohio,  and  as  a  rea- 
son therefor  said  that  the  jus  accnscendi  is  not  founded  in 
principles  of  natural  justice.  It  is  not  founded  in  any  reason 
of  policy  applicable  to  our  society  or  Constitution  and  is  ad- 
verse to  the  undertakings,  habits  and  feelings  of  the  people. 
The  tenancy  is  not  recognized  by  any  statute  in  our  State. 
We  have  no  such  principles  as  the  right  of  survivorship.13 

The  right  of  partition  is  given  to  every  joint  tenant  in 
common,  and  eo-parcener,  and  extends  to  every  estate  in 
real  property  held  jointly  with  others.  As  joint  tenancies 
with  the  common  law  incidents  do  not  exist  in  this  State, 
and  as  there  is  no  substantial  difference  between  co-parceners 
and  tenants  in  common  where  the  lands  descend  to  all  of  the 
children  equally,  even  the  technical  distinction  between  them, 
in  the  opinion  of  Chancellor  Kent,  may  be  considered  as  es- 
3  ntially   abolished  by  the   court.14 

i-  Dennison    v.    Foster,   9    0.    130:  cided  in  some  of  the  States,  but  the 
Lessee  of  White  v.  Sayre,  2  <>.  110,  reasoning    on     which     it    was     sus- 
wherein  it  was  said:   "Deed  by  ten-  tained   is   subtle   and   too   much   re- 
ant    in    common,    or     co-parcenary,  fined:   for.  while  it  is  admitted  that 
purporting    to    convey    in    severalty.  estates    in    joint    tenancy    are    pro- 
:onveyance  for  the  grant-  hibited    by    statute,    and    that    hus- 
par1  •■     See  also  Les-  band   and   wife,   by   reason   of   their 
v.  Emerich.  6  O.  391.  unity,    can    not    hold    in    that    char- 
Sergeant    v.    Steinberger,    2    O.  acter,    they    are    treated     as    71/a.s! 
ilson    v.    Fleming,    13    O.  joint    tenant-    and    the    doctrine   of' 
73.      In  this  1.  ■             —  it  was  said  survivor-hip    applies,"      Fanners    v. 
;,,s    aa               ;    prevails  Wallis,   4~>   O.    S.    165,    in   which   we 
among  joint  tenants  only,  and,  when  find   the   court    saying:    -Under    the 
there  is  no  s                         here  \<  no  laws   of   Ohio,   estates   in   joint   ten- 
ship;    that    is,    survi-  ancy    do    not    exist,    and    the    decis- 
lu-ive  benefit  of  ions    have    always    been    averse    to 
rvivor;    for,   though    partners  estate-    by    entireties.      When    the 
may  bold  by  survivorship,  they  hold  hind,    therefore,    is   granted   to   hua- 
■■    others        -     fell    as  band    and    wife,   they    take   by   moi- 
nd    not    as     joint  eties    as    tenants    in    common."     See 
■:mon   law.      Are  hus-  also  Tabler  v.  Wiseman,  2  O.  S.  208. 
:  .n    to   the  1* Tabler  v.  Wiseman.  2  O.  S.  208. 
general    rule?      It    has    been    so    de- 


375 


SALE   OP   REAL   ESTATE    IX    PARTITION'. 


!01,302 


Sec.  301.     Disputed  title  can  be  determined  in  partition. 

under  the  old  system  of  procedure  in  use  before  the  adop- 
tion of  the  present  -  si  m  of  the  code,  if  an  action  in  partition 
were  sought  in  equity,  and  quesl  -  title  came  up  triable 
in  a  court  of  law.  an  issue  out  <>f  chancery  was  necessary  be- 
fore the  can-  .Id   proceed. 

A  suit  in  partition  could  not  foe  substituted  for  the  old 
action  of  ejectment.  And  when  in  a  partition  action  title 
was  denied,  the  court  in  the  partition  suit  could  not  try  th-j 
question  of  title.  But  as  there  is  but 
under  the  code,  and  as  the  same  court  now  hears  and  det 
mines  all  civil  as  well  as  chancery  cases,  the  courts  now,  in 
partition  cases,  are  not  embarrased  when  the  issues  in  such 
p  ease  raise  the  question  of  title:  and  hence,  now.  in  an  action 
under  the  code  seeking  equitable  partition,  together  with 
an  account  for  rents  and  profits,  an  answer  denying  that  the 
petitioners  have  any  title  to,  or  interest  in,  the  premises.  d<  - 
not  oust  the  court  of  jurisdiction."'' 


Sec.    302.     Will   may   be    construed — Course    of   descent   and 
legality   of   bequest    determined   in   partition. 

It  sometimes  happens  that  by  the  terms  of  a  will,  an  estate 
in  real  estate  is  devised  in  such  manner  that  only  a  constr 
tion  of  the  terms  of  the  will  can  enable  a  division  to  be  ma 
of  it.  or  the  course  of  descent  under  the  terms   of  the  will, 
can  decide  how  partition  can  be  made;  and  even  in  some  cas   - 
the    validity    of    a    provision    of   the    will    can    be    determined 
in  a  partition  ease.16 

In  such  suit  the  rule  that  the  intention  of  the  testator  must 
govern    applies    to    all    partition    proceedings    in    which    the 
construction   of   a   will   is   involved,   but,   where   the   intention 
remains    in    doubt,    resort    must    be    had    to    settled    rule> 
construction  for  aid  in  the  solution   of  the  difficulty. 


is  Perry  v.  Richardson.  27  0.  S. 
110.  And  in  Penn  v.  Cox,  lti  O.  -V2. 
it  i>  held  that  the  court  in  such  an 
action  had  power  to  hear  and  de- 
termine questions  of  title.  In  Hol:u' 
\.  Bierman,  41  O.  S.  81.  it  was 
cid;."  that  "where  a  ]  'i'ion  in  a 
civil  action  prays   I  uitable  par- 

tition ■  >;  real  estate  an!  an  account 
of    rents     and     profits,     an     answer 


denying   plaintitT's   entire  title 

not  oust   the  court  of  jurisdicti  in." 

!•••  Patton  v.  Patton,  .59  O.  S.  5 
Curren  v.  Taylor.   19  0.   "  tlmig 

v.   Meyer.   8    N.    P.   31;    Staple! on    v. 
Ellison,   21    0.    S.    527,    in 
will  was  c  tnstrued  and  an  advance1 
nient    adjust) 

i"  Linton    v.    Layeock.    33    O.     S. 
128. 


§  302  MERWINE   ON    REAL   ACTIONS.  376 

The  terms  of  the  following  will  gave  rise  to  a  very  interest- 
ing partition  proceeding: 

"I  do  make  and  order  this  my  last  will  and  testament 
respecting  the  disposition  of  my  worldly  substance.  In  the 
first  place  I  give  and  bequeath  to  my  beloved  wife,  Mary, 
one-half  of  all  my  real  estate,  and  also  one-half  of  all  my 
personal  property. 

"In  the  second  place  it  is  my  wish  and  desire  that  my 
mother  should  have  a  comfortable  support  during  her  natural 
life  out  of  the  remaining  half  of  my  personal  property. 

"In  the  third  place  it  is  my  wish  and  desire  that  my  prop- 
erty should  I>e  kept  together  until  my  youngest  child  should 
become  of  age  and  make  use  of  it  to  the  best  advantage  for 
the  support  and  educating  my  children,  and  at  the  time  the 
youngest  shall  become  of  age,  the  property  shall  then  be 
disposed  of  and  then  divided  equally  amongst  my  children." 

The  mother  died  many  years  before  the  action  was  begun 
to  partition  the  lands,  and  when  the  action  was  brought  the 
youngest  child  had  been  of  age  inany  years.  There  were 
several  children,  one  of  them  being  the  complainant,  who 
had  purchased  the  interest  of  the  widow  and  had  received 
a  proper  deed  for  her  interest.  Following  the  rule  that  the 
intention  of  the  testator  must  control  in  the  construction  of 
a  will,  the  widow  had  no  interest  in  the  real  estate  disposed 
of  by  will  after  the  youngest  child  became  of  age,  and  com- 
plainant had  no  interest  that  could  be  partitioned.18 

A  devise  to  one  when  he  arrives  at  a  given  age — the  inter- 
mediate estate  being  devised  to  another — vests  on  the  death 
of  the  testator  and  is  not  defeated  by  the  death  of  the  devisee 
before  the  specified  age.  The  words  of  futurity  importing 
contingency  are  not  necessary  with  the  immediate  vesting 
of  the  estate,  but  may  be  regarded  as  merely  postponing  the 
possession.  A  devise,  though  not  otherwise  expressed,  is  im- 
plied in  a  direction  in  the  will  to  divide  an  estate  among 
specific  devisees,  and  the  rule  vesting  legacies — bequeathed 
only  by  ;i  direct  ion  to  pay  or  divide — at  the  time  fixed  for  the 
paymenl  or  division,  does  not  apply  to  devises  of  real  estate.19 

-  Bowe   \.    Fuller,    1!»   0.  51;   see  Day,  J.,  that  it  lias  long  been  set- 
also    Linton    v.    Laycock,   33    0.    S.  tied   that  a  devise  to  one  when  he 
129.  shall  arrive  at  a  given  age,  with  the 
Linton  v.  Laycock,  33  O.  S.  129.  intermediate    estate    devised    to    an- 
In    tlii-    last    case    it    was    said    by  other,    vests    immediately    on    the 


377 


SALE    OF    REAL    ESTATE    IN    PARTITION. 


§303 


Sec.  303.     Partition  creates  no  new  titles. 

Where  tenants  in  common  partition  ancestral  property  by 
leeds,  reciting  as  a  consideration  for  the  same  the  full  value 
of  the  land,  such  consideration  may  be  shown  by  parol  to  be 
the  actual  amicable  partition ;  and  the  property  in  an  amicable 
partition  of  this  kind,  so  coming-  to  one  of  the  heirs  as  a 
tenant  in  common  of  ancestral  lands,  will  still  be  regarded 
an  ancestral  property  and  will  pass  as  such  under  the  statute 
of  descent   and   distribution.20 

But  where  the  partition  is  made  by  the  court,  and  the  real 
estate  is  sold  by  the  sheriff,  the  ancestral  quality  of  the  estate 
is  broken.  A  party  electing-  to  take  the  property  at  its  ap- 
praisement, takes  his  own  share  as  ancestral  property  and  the 
shares  of  the   others  by  purchase.21 

Should  any  of  the  heirs  who  has  received  his  share  of 
ancestral  property  by  partition,  exchange  his  portion  to  an- 
other heir,  receiving  in  the  exchange  the  share  of  another 
heir  in  the  partition,  the  ancestral  quality  of  the  estate  is 
lost  and  the  taker  of  such  portion  holds  by  purchase.22 

In  every  instance  in  determining  the  rights  of  the  parties 
who  have  been  allotted  real  estate  in  partition  by  mutual  re- 


death  of  the  testator,  and  is  not  de- 
feated by  the  death  of  the  devisee 
before  the  specified  age.  It  is  a 
vested  remainder.  The  words  of 
futurity,  importing  contingency,  are 
not  regarded  as  a  condition  prece- 
dent or  as  postponing  the  period  of 
vesting,  but  as  specifying  the  time 
when  the  remainderman  is  to  take 
possession,  citing  Boraston's  Case, 
3  0.  18;  Taylor  v.  Mosher,  29  Md. 
443;  Minning  v.  Ratdorff,  5  Pa.  St. 
503;  Collier's  Will,  40  Mo.  287; 
Roome  v.  Phillips.  24  X.  Y.  4(53: 
Dayforth  v.  Talbot.  7  B.  Monroe, 
€23;  Rivers  v.  Fiipp.  4  Rich  Eq. 
276;  YVatkins  v.  Qarrels,  23  Ark. 
179;  Harris  v.  Alderson,  4  Sneed, 
250 ;  Hancock  v.  Titus,  39  Miss.  224. 
"A  provision  of  a  will  that  there 
would  be  no  partition  of  the  estate 
until  ten  years  after  testator's 
death,  is  a  valid  provision  which 
courts  will  enforce  by  refusing  par- 
tition." In  re  Reynolds'  Estate,  7 
X.  P.  626. 


Under  the  following  will:  "I  be- 
queath to  my  wife  my  real  o-taf ■■. 
in  order  to  raise  my  younger  chil- 
dren, to  have  it  as  long  as  she 
continues  my  widow,  but  if  she 
ceases  be  to  my  widow,  I  wish  it 
not  to  be  disposal  of  until  the 
youngest  child  becomes  of  age.  Xo 
partition  can  be  mads  among  the 
residuary  devisees  until  the  ma- 
jority of  the  youngest  child,  al- 
though the  widow's  estate  may  have 
become  extinct."  Davidson  v.  Wolf, 
9   O.    74. 

20  Carter  v.  Day.  59  O.  S.  96.  In 
this  case  it  was  further  held  that 
'•where  the  estate  in  common  came, 
by  descent,  devise  or  deed  of  gift, 
the  parcel  allotted  to  the  parcener 
who  died  seized  of  the  same,  de- 
scends according  to  the  provisions 
of  §  4158  of  the  Revised  Statutes." 
(Gen'l  Code.  §  S593).  Smith  v.  Car- 
ver. 36  W.  L.  B.  189. 

2i  Freeman  v.  Allen.  17  0.  S.  527. 

22Brower  v.  Hunt,   18  0.  S.  311. 


§304 


MERWINE    ON    REAL    ACTIONS. 


378 


leases  in  severalty,  the  deeds  of  release  should  be  construed 
together  in  the  light  of  all  the  circumstances  attending  their 
execution;  and  it  is  competent  to  show,  in  an  action  to  deter- 
mine the  rights  of  the  parties  to  such  a  partition,  that  their 
only  purpose  was  to  accomplish  the  partition.  In  either  case, 
the  title  of  each  parcener  in  the  share  set  off  to  him,  in 
severalty,  remains  the  same  as  that  by  which  his  undivided 
interest  in  the  land  was  held. 

This  is  upon  the  theory  that  in  every  partition  of  land  among 
tenants  in  common,  no  new  titles  are  created  in  the  new 
shares  in  severalty.  This  effect  of  the  partition  is  to  locate 
the  share  of  each  in  his  allotted  parcel  of  the  land,  and 
extinguish  all  his  interest  in  all  the  others.  The  title  by 
which  he  holds  his  divided  share  is  the  same  as  that  by  which 
his  undivided   interest   in  the   estate   in   common   was   held.23 

A  partition  proceeding  operates  upon  the  possession — dis- 
solves the  unity  before  existing,  and  enables  each  of  the 
owners  to  know,  possess,  and  enjoy  his  own  share  of  the 
common  estate  in  severalty.  This  construction  preserves  all 
the  analogies  of  the  law,  and  is  fully  sustained  by  the  ad- 
judged eases.  It  is  well  settled  that  such  a  proceeding  does 
not  decide  title,  or  create  any  new  title.  It  merely  dissolves 
the  tenancy  in  common,  and  leaves  the  title  as  it  was,  except 
to  locate  such  rights  as  the  parties  may  have,  respectively, 
in  distinct  parts  of  the  premises,  and  to  extinguish  it  in  all 
others.24 

Sec.  304.     Construction  of  partition  by  mutual  releases. 

When  partition  is  made  by  mutual  releases,  they  should  be 
read  and  construed  together  in  the  light  of  the  circumstances 


28Carter  v.  Day,  59  0.  S.  96; 
Tabler  v.  Wiseman,  >  0.  S.  208; 
McBain  v.  McBain,  15  0.  S.  337; 
Freeman  v.  Allen,  17  0.  S.  527; 
Cresthwail  v.  Dixon.  5  Adol  &  Sele'a 
834;   Bank  v.  Wallace,   !.'»  0.  S.  L52. 

-'  Tabler  v.  Wiseman.  2  0.  S.  210; 
see  also  Goundie  v.  Northampton 
Water  Co.,  7  Barr,  -27S-.  McClure 
v.  McClure,  2  Harris,  137;  Bonner 
v  Proprietors,  etc.,  7  Mass.  47-V. 
Wills  v.  Price,  f)  Mass.  508;  Brown- 
ell  v.  Brownell,  19  Wend.  367; 
Claprj   v.    Bromagham,  '.)  Cow.  561; 


Culver  v.  Culver,  2  Hoot,  278;  6 
Dane's  Ab.  480;  5  Denio,  388; 
Youngs  v.  Heffner,  36  0.  S.  237. 
••'1  lie  rule  asserted  in  Tabler  v. 
Wisemen,  2  0.  S.  207,  and  McB  on 
v.  McBain,  15  0.  S.  337,  applicable 
to  partition  proceedings  under  t!r.- 
statute,  that  no  new  title  is  cre- 
ated thereby,  does  not  apply  to  ">!<• 
deliberate  conveyances  of  the  par- 
ties especially  where  there  is  an  in- 
dependent consideration  for  s-icli 
conveyances."  Hershizer  v.  Flor- 
ence, 3!)  O.  S.  516. 


379 


SALE    OP    REAL    ESTATE    IN    PARTITION. 


§305 


attending  their  execution,  .and  it  is  competent  to  show  their 
only  purpose  was  to  accomplish  the  partition,  and  no  other 
consideration  passed  between  the  parties  though  a  pecuniary 
consideration  be  expressed  in  the  deed.25 

Where  land  is  purchased  with  an  undivided  fund,  in  which 
the  parent  has  a  life  estate  and  the  children  a  remainder, 
and  a  conveyance  is  made  to  the  former,  the  title  will  be  held 
in  trust  for  the  latter  subject  to  the  life  estate;  and  upon 
termination  of  the  life  estate  they  will  hold  the  equitable. 
title  as  tenants  in  common  in  the  proportion  of  their  respec- 
tive shares  in  the  fund,  and  such  tenants  in  common  are  enti- 
tled to  partition.-0 

Sec.  305.     Applicant  for  partition  must  be  in  actual  or  con- 
structive possession. 

The  proceeding  in  partition  can  not  be  made  to  take  the 
place  of  the  action  in  ejectment.  The  applicant  must  be  in 
actual  or  constructive  possession  of  the  real  estate  sought  to 
be  aparted.  It  has  been  so  held  in  many  of  the  States.27  In 
this  State  the  right  of  entry  on  the  part  of  the  applicant  is 
sufficient.28 

A  prominent  text  writer  has  said,  on  this  subject,  that 
proceedings  for  partition  were  not  designed  as  an  alternative 
remedy  with  the  action  of  ejectment.  It  was  always  neces- 
sary at  the  common  law,  and  is  still  essential  under  most  of 
the  American  Statutes,  that  the  applicant  for  partition  be 
actually  or  constructively  in  the  possession  of  the  read  prop- 
erty sought  to  be  divided.  If  it  be  held  adversely  to  the 
applicant,  he  must  first  establish  his  right  by  action  to  recover 
his  possession.-" 


-•->(artcr  v.  Day.  5!)  O.  S.  90. 
Where  several  deeds  of  release  are 
executed  as  parts  of  one  and  the 
same  transaction  and  to  effect  a 
single  purpose,  viz.:  a  partition  of 
real  estate  between  heirs,  tenants 
in  common,  they  must  be  read  and 
construed  together,  and  their  com- 
bined effect  must  settle  the  rights 
under  them.  White  v.  Brocow,  14 
O.  S.  339;  Dawson  v.  Lawrence,  13 
0.  544.  This  last  case  holds  that, 
where  tenants  in  common  execute 
deeds   of  bargain,   sale   and   release, 


for  the  consideration  of  an  agree- 
ment for  partition  and  one  dollar, 
they  inure  as  deeds  of  partition 
only. 

26  Roberts  v.  Remey,  56  0.  S.  24*9. 

■-'"  Browns  v.  Broprietors,  7  Mass. 
!7.->;  Wills  v.  Price,  9  Mas3.  508; 
Brownell  v.  Brownell,  19  Wend. 
307;  •Clapp  v.  Broneagham,  9  Cow. 
501;   Culver  v.  Culver,  2   Root,  278. 

zsTabler  v.  Wiseman.  2.O.  S.  207 . 

28  Quoted  by  the  court  i;i  De- 
laney  v.  McFadden,  7  W.  L.  B.  2-07, 
from    Freeman   on    Partition,    §  447. 


§  306  MERWINE   ON    REAL    ACTIONS.  380 

It  would  seem  from  the  result  of  the  adjudged  cases  that 
the  purpose  of  the  whole  proceeding  in  partition  is  to  secure 
for  the  applicant  an  exclusive  possession  of  his  share  of  the 
joint  real  estate.  The  proceeding  would  be  abortive,  if  after 
the  applicant  is  awarded  his  share,  he  would  still  be  out  of 
the  possession  of  the  same.  The  requirement  of  the  law  is 
satisfied  where  the  demandant  for  partition  is  seized  of  the 
real  estate.  This  is  so  where  the  real  estate  to  be  partitioned 
is  in  the  possession  of  a  third  person  under  a  lease  for  a 
short  term  of  years.  This  possession  of  the  lessee  is  the  pos- 
session of  the  owner,  and  is  no  bar  to  the  proceeding.30 

From  the  foregoing  rules  of  law  as  to  possession  in  par- 
tition proceedings,  we  conclude  that  neither  reversioners  nor 
remaindermen  are  entitled  to  the  writ  when  there  is  a  life 
estate  outstanding  on  the  real  estate  sought  to  be  partitioned.31 
And  the  reason  and  principle  on  which  this  rule  seems  to 
have  been  based  is  that  the  purpose  and  object  of  the  law 
relating  to  partition  is  to  give  each  of  the  co-parceners  pos- 
session of  his  share  in  severalty.  Where  such  possession  in 
severalty  can  not  be  given  to  the  real  estate,  no  reason  can 
be  shown  for  invoking  the  aid  of  the  law  for  the  writ.32 

Sec.   306.     Several  estates,   part  of  which  under  life  leases, 
part  of  which  not — Part  can  be  partitioned  and  part  not. 

Partition  among  heirs  of  an  estate  consisting  of  several 
tracts  of  land,  some  of  which  are  held  by  some  of  the  heirs 
under  life  leases,  with  remainder  in  fee  to  all,  will  only  be 
granted  on  the  properties  unincumbered  with  such  leases, 
unless  the  holders  of  the  life  estate  join  in  the  prayer  for 
partition,  in  which  case  partition  will  be  made  of  the  whole, 
subject  to  leases.  In  this  case,  the  court  in  the  opinion,  said: 
"By  Revised  Statutes  5754  (Gen'l  Code,  §12026),  tenants  in 
common  and  co-parceners  of  any  estate  in  lands,  tenements  and 
hereditaments  within  the  State  may  make  or  suffer  -partition 

•11   v.  Waite,  12  0.  D.  X.  P.  physical    occupation,    such    as    the 

324.      "The    estate    of    the    parties  action     of     trespass."       Werner     v. 

here   i-  nol    one   in   expectancy,  but  Glass,    16   W.    L.    B.    354,    citing    1 

in     possession,     because     from     the  Washb.    Real   Prop    (4th    Ed.),   pp. 

days    of    the    feudal     system    until  72-442:     2    /</.    p.    74U;     Tiedeman 

now  the  possession  of  a   tenant  lias  Real  Prop.,  §003. 

l.i  i'ii    considered    tin'    possession    of  31  Burbec  v.  Spollen,  1"  W.  L.  B. 

the  landlord,  except    so   far  as  con-  4'04. 

cerns   rights  dependent  upon  actual  32  Tabler  v.  Wiseman,  2  O.  S.  209. 


381  SALE    OF    REAL    ESTATE    IN    PARTITION.  §  306 

thereof  in  manner  hereinafter  prescribed.  *  *  *  As  to  the 
tracts  incumbered  by  life  leases,  our  supreme  court  in  Tablet*  v. 
Wiseman.  2  0.  S.  207,  has  held  that  neither  reversioners  nor  re- 
maindermen can  have  partition,  the  right  only  extending  to 
those  who  have  possession  or  individual  right  to  possession 
of  land  sought  to  be  apportioned.  Neither  of  the  plaintiffs, 
both  being  reversioners,  can  demand  partition  of  the  lots  held 
by  the  parties  under  life  leases.  But  the  defendants,  being 
the  owners  of  life  estates  and  also  owning  an  interest  in 
the  remaindermen  in  fee,  may  have  partition.  These  owners 
of  the  life  estates  and  also  remainders  do  not  in  the  pleadings 
ask  for  partition  of  that  so  held  by  them,  and  they  only  can 
demand  it.  If  they  desire  to  amend  by  inserting  a  prayer  to 
that  effect,  partition  will  be  made  of  the  whole  estate  subject 
to  the  leases,  otherwise  it  will  only  be  of  that  unincumbered 
by  such  estate."  33 

The  fact  that  there  is  an  outstanding  lease  of  a  few  years 
against  real  estate,  will  not  prevent  the  owners  from  parti- 
tioning the  same.  The  lessees  being  in  possession  will  not 
interfere,  in  any  way,  with  the  suit ;  for  in  such  case  the 
lessee's  possession  is  the  possession  of  the  owner.31 

In  the  Superior  Court  of  Cincinnati,  in  a  case  where  a  party 
was  the  owner  and  in  the  possession  of  an  undivided  half  of 
certain  real  estate,  and  was  in  the  possession  of  the  other 
undivided  half  thereof,  under  a  lease  from  the  owner  for  a 
term  of  years,  whereby  he,  as  lessee,  was  to  keep  the  build- 
ings insured,  pay  all  taxes  and  assessments  and  a  money 
rent,  it  was  decided  that  such  person,  so  in  possession,  would 
not  be  allowed  a  writ  of  partition.  This  decision  was  based, 
evidently,  upon  the  theory  that  a  sale  of  the  premises  by 
partition  would  result  in  a  termination  of  the  lease  and  thus 
the  obligation  of  a  contract  would  be  impaired.33 

The  owner  of  a  life  estate  who  joins  in  a  mortgage  by  one 
of  the   remaindermen,   and   upon  suit  being   brought  in   fore- 
s'! Berbeck    v.    Spollen,    10th    Rec.       tion."     Ibid;   Scott  v.    Wait.   12   0. 
494:    Elrod  v.  Bass,   1   C.   C.  R.   38.       D.  N.  P.  324. 

34  Werner   v.   Glass,   16   W.   L.   B.  35  Shilto  v.  Pullon,  2  Disney,  588 ; 

354.     '"It  is  evident,  therefore,  that       and  for  another  case  where  one  ten- 
the   tern   possession   is  used   as   op-       ant    leased    to    another    and    parti- 
posed     to     expectancy — as     defining       tion    was     asked,     see     German     v. 
the  nature  of  the  estate  rather  than       Doren,  49  W.  L.  B.  242. 
referring    to     its    physical    occupa- 


§  307  MERWINE    ON    REAL    ACTIONS.  382 

closure,  files  no  answer  and  makes  no  defense,  is  barred  from 
setting  up  in  a  subsequent  suit  in  partition  that  she  had  no 
interest  in  the  loan  secured  by  mortgage.  A  widow  has  a 
right  in  Ohio  to  dispose  of  her  life  estate  or  a  portion  of  it 
by  releasing  her  right  to  the  use  of  that  portion  where  the 
property  is  devised  to  the  Avidow  for  life  with  remainder  to 
children,  with  a  proviso  that  the  property  shall  not  be  sold 
during  the  life  of  the  widow.  The  clause  against  alienation 
is  repugnant  to  the  devise  to  the  children  and  of  no  effect. 
One  who  acquires  from  a  remainderman  his  interest  in  the 
land,  and  who  also  acquires  the  interest  of  a  life  tenant  has  a 
title  in  fee  with  the  right  to  immediate  possession,  and  to 
have  his  portion  set  off,  but  whether  he  has  a  right  to  a  sale 
of  the  premises — quaere?™ 

Sec.  307.  Remaindermen  or  reversioners  can  not  have  par- 
tition— Life  estate  outstanding,  when. 

Dower  was  assigned  in  the  whole  of  a  certain  tract  of  real 
estate  to  the  widow.  While  she  was  alive  the  heirs  to  the 
land  brought  an  action  to  partition.  The  court  in  holding 
that  the  heirs  were  not  entitled  to  partition  while  the  life 
estate  was  outstanding,  gave  for  its  reasons  for  sueh  holding 
the  following: 

"The  result  of  the  adjudged  cases,  as  well  as  the  purpose 
of  the  statute,  and  the  object  of  the  wrhole  proceeding  seem  to 
be  to  secure  to  the  tenant  an  exclusive  possession  of  his  share 
of  the  joint  property;  and  where  no  such  possession  can 
follow  the  judgment,  no  reason  is  shown  for  invoking  the 
aid  of  the  law,  or  for  calling  the  other  owners  into  court,  and 
subjecting  them  to  the  expenses  incident  to  the  proceeding, 
much  less  to  compel  them  to  submit  to  a  forced  sale  of  their 
interest,  under  circumstances  which  can  hardly  fail  to  result 
in  a  sacrifice.  Before  this  can  be  done,  the  applicant  must 
show  that  he  is  submitting  to  the  inconveniences  of  a  joint 
possession,  and  thai  to  protect  him  in  the  actual  enjoyment 
of  what  belongs  to  him,  it  is  necessary  to  interfere  with  the 
rights  and  interests  of  his  co-tenants.  Until  this  is  shown, 
there  is  no  joint  possession  to  sever,  and  consequently,  nothing 

["oledo  Loan  Company  v.  Lark        208;   Morgan   v.  Staley,   11  0.  389; 
ing,    I   C.  C.  X.  S.    it;.  i;i  which  i-       Elrod   v.   Bass,    1    C.  V.   38. 
I    Tabler    v.    Wi3eiran,   2    0.   S 


388 


SALE    OP    REAL    ESTATE    IN    PARTITION. 


§307 


upon  which  the  judgment  of  the  court  can  legitimately  oper- 
ate. The  primary  object  of  the  statute  is  to  effect  an  actual 
division  of  the  property  among  the  owners,  and  it  is  only 
where  this  can  not  be  done  without  manifest  injury  to  the 
value  thereof,  that  the  election  or  sale  is  allowed.  In  making 
such  division,  the  commissioners  are  to  have  'due  regard  to 
the  improvements,  situation,  and  quality  of  the  different  parts 
of  the  estate';  and  this  is  to  be  done  on  actual  view.  A 
large  part  of  its  value  may  then  consist  of  buildings,  or  other 
improvements,  which,  before  the  expiration  of  the  life  estate, 
may  be  entirely  destroyed,  or  become  comparatively  value- 
less. If,  instead  of  the  comparative  certainty  which  this  sec- 
tion enjoins,  the  commissioners  were  permitted  to  speculate 
upon  its  probable  condition  at  the  termination  of  the  life 
estate,  the  blindest  conjecture  would,  unavoidably,  be  substi- 
tuted, and  the  chances  of  an  equitable  division  much  -dimin- 
ished. In  view  of  these  considerations,  and  others  that  might 
be  mentioned,  which  will  readily  suggest  themselves,  we  are 
of  opinion  that  the  writ  of  partition  will  not  lie,  unless  the 
applicant  has  the  present  right  of  possession  to  some  part  of 
the  premises  sought  to  be  aparted."37 

But  where  a  party  owns  the  life  estate  and  is  also  the 
owner  of  one  of  the  shares  in  remainder  he  may  have  par- 
tition.38 


st  Tabler  v.  Wiseman,  2  0.  S. 
208;  Fritz  v.  Fritz,  16  0.  S.  218; 
Stevens  v.  Enders,  1  Green's  X.  J. 
R.  271;  Brown  v.  Brown,  8  X.  II. 
'93;  Striker  v.  Mott,  2  Paige,  3S9 ; 
Wood  v.  Clute,  1  Sand.  thy.  Rep. 
202.  "By  the  provisions  of  a  will, 
a  life  estate  in  certain  real  estate 
was  devised  to  five  parties  named 
in  equal  proportions,  the  will  pro- 
viding that  no  partition  .during  the 
life  or  lives  of  any  of  such  life  ten- 
ants should  he  made  unless  it 
could  lie  done  without  a  sale  of  the 
land.  Suit  for  partition  being  in- 
stituted by  one  of  the  life  tenants, 
a  decree  therefor  was  granted  and 
commissioners  appointed  by  the 
court  to  make  partition,  who  re- 
ported that  the  land  could  not  be 
aparted,  and  should  be  sold.  The 
other  co-tenants,  defendants  in  the 


suit,  thereupon  asked  leave  to  file 
supplemental  answers  setting  up 
the  provisions  of  the  will  against  a 
sale  in  partition  of  the  land  duiinj 
the  life  of  any  of  the  co-tenants, 
the  granting  of  such  leave  being 
resisted,  on  the  ground  that  it  was 
then  too  late  to  set  up  this  de- 
fense after  the  matter  had  been 
heard  and  adjudicated  by  the  court, 
and  a  decree  for  partition  made. 
II dil:  That  it  was  discretionary 
with  the  court  to  permit  t:ie  filing 
of  such  supplemental  answers,  al- 
though the  right. of  the  court  to 
order  a  sale  might  be  resisted  when 
an  application  is  made  to  the  court 
to  order  a  sale."  Hieatt  v.  Black, 
14  ('.  C.   194. 

ss  Morgan  v.  Staley,  11  0.  3S9; 
Elrod  v.  Bass,  1  ('.  < '.  R.  3S;  Pat- 
terson  v.    Patterson,    Dayton,    28S; 


§§  308,  309  MEKWINE   ON   REAL   ACTIONS.  384 

The  matter  presents  no  difficulty  where  the  owner  of  the 
life  estate  joins  in  the  application  of  a  remainderman  for  a 
sale  and  consents  thereto,  and  it  further  appears  to  the  court 
that  a  sale  will  not  be  detrimental  to  the  interests  of  the  other 
remaindermen.39 

Where  several  parties  are  tenants  in  common  in  an  undi- 
vided interest  in  real  estate,  each  holding  a  life  estate  therein, 
any  one  of  the  life  tenants  may  bring  an  action  for  partition 
thereof  against  the  other  life  tenants,  and  if  the  same  can  be 
aparted  without  injury,  partition  will  be  granted;  if  not, 
then  a  sale  may  be  had  of  the  life  estates  therein.4 


40 


Sec.  308.    Title  of  demandant  must  be  alleged  and  proved. 

In  preparing  the  petition  for  partition  the  pleader  should 
exercise  care  in  stating  the  cause  of  action.  Partition  suits 
being  seldom  contested  the  pleader  is  sometimes  careless  in 
drafting  the  petition.  This  often  embarrasses  the  lawyer  and 
client  when  the  suit  is  contested. 

Anyone  demanding  partition  of  real  estate  should  set  forth 
in  ordinary  and  concise  language  the  title  and  interest  not 
only  of  himself,  but  the  several  tenants,  and  he  is  bound  to 
sustain  the  same  by  sufficient  evidence.  Parties  owning  the 
entire  interest  in  a  part  of  the  premises,  though  misdescribed 
in  the  petition,  have  a  right  to  come  in  and  defend.  When 
it  is  shown  that  a  part  of  the  persons  claiming  to  be  tenants 
in  common,  have  no  interest  in  a  part  of  the  premises,  the 
petition  can  not  be  maintained.41 

Sec.  309.     Who  may  have  partition. 

Tenants  in  common,  and  co-parceners  of  any  estate  in 
lands,  tenements,  or  hereditaments  within  the  State,  may  be 
compelled  to  make  or  suffer  partition  thereof  in  manner  pro- 
vided hereinafter.42 

Toledo,  etc.,  v.  Larking,  1   C.  C.  R.  See  Prentiss  Case,  7  O.  120  (Pt.  2). 

N.   s.    i;:;.     "But  whether  In-  has  a  Sec    No.   256   for   form    for   petition 

right     m    ;i     sale    of    the    premises,  in  partition  and  to  quiet  title.    See 

quaert  .'"  No.    277    for    form    for    petition    in 

*  1 1 1 •  1 1 1 1 i lt  v.  Meyer,  s  X.  P.  31.  equitable    partition    when    advance- 

"Hieatl    \.   Black,   1ft  C.   < '.    194.  ments  have  been  made;  see  No.  280 

Ami  for  an  excellent   form  for  peti-  for   form   for   petition   in   partition 

ti  hi    in    Buch    action,    Bee    1    Whit-  by  guardian. 

taker's  Code    Forms,   p.  541.  « Gen'l     Code,     §12020     (R.     S. 

41  Harmon    v.    Kelly,    1!)    O.    502.  §5754). 


385  SALE  OF  REAL  ESTATE  IN  PARTITION.  §  310 

An  assignee  in  insolvency  for  the  benefit  of  creditors  to 
whom  a  tenant  in  common  has  assigned  his  interest  in  trust 
for  the  benefit  of  his  creditors  may  have  partition. 4:! 

Members  of  a  land  syndicate,  where  the  arrangement  of 
the  shareholders  and  trustees  indicates  that  the  shareholders 
were  not  entitled  to  an  interest  in  the  land,  but  were  entitled 
to-  an  interest  in  the  proceeds  of  a  sale  thereof,  the  partition 
writ  will  be  denied.44 

A  railroad  company,  having  purchased  from  another  rail- 
road company  an  undivided  interest,  which  it  could  do  then 
under  the  statute  relating  to  insolvent  railroad  companies, 
could  not  under  the  partition  statute  compel  a  partition  of 
the  two  properties.45 

In  all  cases  of  partition  in  equity,  the  writ  of  partition 
will  be  refused  unless  it  be  shown  to  be  absolutely  essential 
to  the  petitioner's  rights.40 

Sec.  310.     When  partition  can  not  be  had — When  the  action 
must  be  brought. 

It  has  been  held  that  lands  in  the  military  district  which 
have  been  entered  and  surveyed,  but  no  patent  issued  and 
the  parties  demanding  partition  not  being  in  possession,  and 
not  showing  any  right  to  recover  possession,  can  not  be  al- 
lowed the  writ.52 

Real  estate  owned  by  a  partnership  can  not  be  partitioned 
until  the  debts  have  been  paid  and  the  affairs  of  the  partner- 
ship adjusted.  Then  the  real  estate  of  such  partnership  may 
be  partitioned.  The  reason  for  this  is  that  in  Ohio,  as  well 
as  several  other  of  the  States  of  the  Union,  partnership  real 
estate  is  governed  and  controlled  by  the  doctrine  of  conver- 
sion which  converts  partnership  realty  into  personalty,  or  in 
the  language  of  the  decisions,  there  is  an  out  and  out  conversion 
into  personalty.53 

«Horstman    v.    Putter,    6    N.    P.  46  Sliilto  v.  Pullen,  2   Dis.  501. 

470;  Van  Arsdale  v.  Drake,  2  Barb.  *-  Morrison   v.   Balkans,   8   W.    L. 

599;  Galtie  v.  Eagle,  65  Barb.  3S3;  R.    572. 
Jewett  v.  Perette,   127  Ind.  97.  53  Fisher    v.    Long,    19    W.    L.    B. 

«  Homer   v.  Myers.   29   W.   L.   B.  139;    Green    v.    Green,    1    0.    535; 

403;     Spahr    v.    Parker,    9    Bevan,  Green  v.  Graham,  5  O.  2(14 ;  Summer 

450;   Mallery  v.  Russell,  71  la.  63;  v.    Hampson,    8    O.   364;    Ludlow   v. 

Ward  v.   Davis,  3   Sanford,  502.  Cooper,  4  O.  S.   1;   Rammelsburg  v. 

45  Railroad    Co.    v.    Railroad    Co.,  Mitchell.    29    O.   S.   22. 
38   0.  S.  614. 


§§  311,  312  MEKWINE    ON    REAL    ACTIONS.  386 

The  action  must  be  brought  in  the  county  where  the  land 
is  situated ; 54  and  where  the  real  estate  is  situated  in  more 
than  one  county,  the  action  may  be  properly  brought  in 
either  county.55 

Sec.  311.     Who  may  file  petition  for  partition. 

Any  person  entitled  to  partition  of  an  estate  may  file  his 
petition  therefor  in  the  court  of  common  pleas,  setting  forth 
the  nature  of  his  title  and  a  pertinent  description  of  the 
lands,  tenements  or  hereditaments  of  which  partition  is  de- 
manded, and  naming  each  tenant  in  common,  co-parcener, 
or  other  person  interested  therein  as  defendants.  The  par- 
ties to  the  action  in  partition  are  to  be  as  in  other  actions. 
Every  one  claiming  any  lien  or  interest  in  the  real  estate 
sought  to  be  partitioned  should  be  required  as  parties  to  the 
action  to  set  forth  their  claims  in  the  action  by  appropriate 
pleadings.  «In  the  first  chapter  of  this  work  will  be  found  a 
full  discussion  of  how  defendants  may  voluntarily  enter  their 
appearance  to  the  action,  how  infants  are  summoned,  how 
the  action  is  defended  for  them  by  guardians  ad  litem  ap- 
pointed by  the  court,  how  service  is  made  on  resident  and 
non-resident  defendants,  how  service  is  made  by  publication 
on  non-resident  defendants,  and  by  copy  of  the  petition,  how 
copy  of  the  newspaper  containing  the  publication  is  to  be 
mailed  and  the  docket  entry  made  showing  the  same,  how 
service  is  had  by  publication  on  unknown  heirs,  and  how  insane 
defendants  are  represented  in  the  action  by  trustees  appointed 
by  the  court  for  that  purpose.56 

Sec.  312.     The  order  of  partition. 

[f  the  court  finds  that  the  plaintiff  has  a  legal  right  to  any 
part  of  the  real  estate  set  forth  and  described  in  his  petition, 
it  will  order  partition  thereof  in  favor  of  the  plaintiff,  or  all 
parties  in  interest,  appoint  three  disinterested  and  judicious 
freeholders  of  the  vicinity  to  be  commissioners  to  make  the 
partition,  and  order  a  writ  of  partition  to  issue.57     Appraisers 

n'l     Code,     §11268      (R.     S.  soGen'l     Code,     §12048      (R.     S. 

I  6019).  §  5775).     See  also  §• — ■—  herein  and 

BBGen'l     Code,     §12047     (R.     S.  following. 

§5776);  Gen'l  Code,  §  11269  (R  S.  "  Gen']     Code,     §12047      (R.     S. 

§502(11.      Benton   v.   Shaffer,   47    O.  §5757);    see   No.    2(17    for    form   of 

8.  129;  see  also  §  11,  supra.  writ. 


387 


SALE  OF   REAL  ESTATE   IN   PARTITION. 


§§313,314 


are  allowed,  under  the  statute,  each  one  dollar  for  each  day's 
service.  An  allowance  of  more  than  that  sura  will  be  set 
aside.  It  is  a  presumption  of  law  that  every  one  charged,  by 
law.  with  the  performance  of  a  duty,  is  capable  of  perform- 
ing the  same ;  and  no  allowance  should  be  made  for  the  serv- 
ices of  an  auctioneer  in  selling  the  real  estate  because  that  is 
the  duty  of  the  sheriff.  However,  it  would  seem  that  a  sheriff 
can  employ  an  auctioneer  and  the  parties  may  expend  money 
in  special  advertisement  of  a  sale  of  the  real  estate,  if  the 
court,  on  good  cause  shown,  so  orders  the  same  by  proper 
entry  upon  the  journal.58 

Sec.  313.     The  writ  of  partition. 

The  writ  of  partition  may  be  directed  to  the  sheriff  of 
either  of  the  counties  in  which  any  part  of  the  real  estate 
lies,  and  shall  command  him  that,  by  the  oaths  of  the  com- 
missioners, which  oath  may  be  administered  by  him,  he  cause 
to  be  set  off  and  divided  to  the  plaintiff,  or  each  party  in 
interest,  such  part  and  proportion  of  the  estate  as  the  court 
shall  order.59 


Sec.  314.     Commissioners  shall  make  partition,  how. 

In  making  such  partition,  commissioners  are  required  to 
view  and  examine  the  estate,  and,  on  their  oaths,  set  apart 
the  same  in  such  lots  as  will  be  most  advantageous  and 
equitable,  having  due  regard  to  the  improvements,  situation 
and  quality  of  the  different  parts  thereof.60  Although  com- 
missioners may  assign  a  very  satisfactory  reason  for  the  par- 
tition of  property  in  a  certain  marwier,  yet  where  the  evi- 
dence on  the  hearing  of  exceptions  filed  to  the  report,   shows 


•r'8  Leyman  v.  Leyman,  19  C  C. 
654.  "A  deputy  sheriff,  summoned 
for  that  purpose  by  the  principal 
sheriff,  may  legally  act  as  one  of 
the  commissioners  of  partition,  al- 
though he  afterward  make  the  final 
return."  Smith  v.  Barber,  7  0. 
118  (Pt.  1st).  But  see  Smith  v. 
Pratt,  13  O.  540  (2d  Pt.).  and  as 
to  procedure  where  two  suits  in 
partition  by  the  same  owners  for 
the  same  lands  are  filed  on  the  same 
day,  see  Lowe  v.  Maurer,  1  Cleve. 
157. 


soGen'l  Code.  §12030  (R.  S. 
§  5758).  See  No.  266  for  form.  An 
excellent  form  of  a  decree  in  par- 
tition can  be  found  in  3  Bates 
Pleading,  Practice  and  Forms,  p. 
2361.  "The  prosecution  of  two 
writs  of  partition,  at  the  same 
time,  and  for  the  same  object, 
does  not  vitiate  the  regular  pro- 
ceedings in  one.  upon  which  par- 
tition is  made."  Smith  v.  Barber, 
7   O.    118    (2d   Pt.). 

soGen'l  Code,  §12031  (R.  S. 
§  5759). 


§315 


MERWINE   ON    REAL   ACTIONS. 


388 


that  the  division  of  the  property  is  unequal  and  unfair,  the 
report  of  the  commissioners  and  return  of  the  sheriff  will  be 
vacated  and  set  aside  and  new  commissioners  will  be  ap- 
pointed.61 

Sec.   315.     How   partition  made  when  more   than   one  tract 
demanded. 

When  partition  of  more  than  one  tract  is  demanded,  it  is 
the  duty  of  the  commissioners  to  set  off  to  each  plaintiff  or 
party  in  interest  his  proper  proportion  in  each  of  the  several 
tracts,  unless  the  several  tracts  are  owned  by  the  same  pro- 
prietors in  the  same  proportion  in  each  tract,  in  which  case  a 
whole  share  of  any  proprietor  in  all  the  several  tracts  may 
be  set  off  to  such  proprietor  according  to  the  best  discretion 
of  the  commissioners.62 


ei  Miller   v.   Rouse,   7   N.   P.   300. 
In  a  review  of  proceedings  in  par- 
tition,    the     partition     proceedings 
will    not   be    reversed   or   set    aside, 
unless    the   commissioners    in    parti- 
tion    have     violated     the     law,     or 
have    made    an    unequal    and    un- 
fair    division.       Kirby     v.     Kirby, 
12  Cir.  D.  736.     "The  true  rule  is, 
that   where   three   or   more   persons 
are  charged  with  a  judicial  or  quasi 
judicial   function,  under  an  author- 
ity derived,  not  from  the  parties  in 
interest  merely,  but  from  a  law  or 
statute    of     the    State,    though    all 
must   hear   and   deliberate   together, 
a   majority   must  decide."     Nichols 
v.    Balser,    1    C.   C.   48.  citing   Free- 
man  on    Co-tenancy   and    Partition, 
g  523 :    Townsend  v.  Hazard,  9  R.  I. 
142;    Underbill   v.  Jackson,   1   Barb. 
(  h.  73;  Schuyler  v.  Marsh,  37  Barb. 
350;    Kane   v.    Parker,    4    Wis.    123. 
It    has    been    held    by   the   Supreme 
Court    "that    the    report    of    a    ma- 
jority    of    the     commissioners    ap- 
pointed   by    the    court    to    appraise 
land     condemned     for     public    uses 
would   hind  the  minority,"  and  jus- 
tified   their    decision  on   the   ground 
thai   the  power  conferred   was  of  a 
public    nature.      Young   v.    Bucking- 
ham. :>  0.  485. 

02(;(.ri     Code,     §12032     (R.     S. 


§5760).  It  has  been  held  that 
there  may  be  awarded,  in  a  par- 
tition suit,  t:>  one  of  several  ten- 
ants in  common,  who  own  several 
tracts  of  land,  any  one,  or  to  each 
one,  an  entire  tract.  Smith  v.  Bar- 
ber, 7  0.   (Pt.  2)    118. 

The  court  in  this  case  quoted  the 
following  from  Lit.  Tenures,  2.51: 
"If  two  mesnes  descend  to  two 
parceners,  and  one  mesne  is  worth 
twenty  shillings  per  annum  and  the 
other  ten  shillings  per  annum,  i:i 
this  case  partition  may  be  made  be- 
tween them  in  this  manner,  to-wit: 
The  one  parcener  to  have  the  one 
mesne,  and  the  other  parcener,  the 
other ;  and  she  which  hath  the  mesne 
worth  twenty  shillings  per  annum, 
and  her  heirs,  shall  pay  a  yearly 
rent  of  five  shillings,  issuing  out  of 
the  same  mesne,  to  the  other  par- 
cener and  her  heirs  forever,  because 
of  the  inequality." 

"Partition  under  the  act  of  1831 
for  partition  of  real  estate,  should 
either  be  made  by  setting  off  the 
demandant  his  portion  and  leaving 
the  residue  an  entire  tract  for  the 
other  tenants,  or  by  apportioning 
to  each  his  proportion.  A  report 
setting  off  to  the  demandant  his 
part  and  leaving  the  residue  di- 
vided into  several  parts  will,  if  ex- 


389 


SALE    OF    REAL    ESTATE    IN    PARTITION. 


§316 


Sec.  316.  Commissioners  to  appraise  land  when  they  can  not 
divide  it — Election  of  parties  to  take  the  real  estate  at 
appraisement. 

When  commissioners  are  of  the  opinion  that  the  estate  can 
not  be  divided  according  to  the  demand  of  the  writ  without 
manifest  injury  to  the  value  thereof,  they  must  return  that 
fact  to  the  court,  with  a  just  valuation  of  the  estate ;  there- 
upon, if  the  court  approve  of  the  return,  and  one  or  more 
of  the  parties  elect  to  take  the  estate  at  such  appraised  value, 
the  same  will  be  adjudged  to  him  or  them,  upon  his  or  their 
paying  to  the  other  parties  their  proportion  of  the  appraised 
value  thereof  according  to  their  respective  rights,  or  securing 
the  same  as  hereinafter  provided.03 

A  very  interesting  case  in  partition,  and  the  election  to 
take  the  property  therein  after  an  appraisal,  came  before  the 
courts  in  an  action  where  the  commissioners  appointed  to 
assign  dower  and  make  partition  of  the  lands  described  in 
the  petition,  subject  to  a  dower  estate  therein,  stated  in  their 
report  an  assignment  of  dower  by  metes  and  bounds,  and 
being  of  opinion  that  partition  of  the  "balance"  could  not 
be  made  without  manifest  injury  thereto,  made  and  re- 
turned to  the  court  their  estimate  of  the  value  thereof  in 
money,  but  made  no  partition  of  any  part  of  the  estate.  Upon 
such  appraisal  a  party  to  the  partition  suit  elected  to  take 
the  real  estate  at  the  appraised  value.  After  the  dower 
estate  had  been  determined,  certain  of  the  heirs  who  had 
been  defendants  in  the  partition  case,  filed  their  petition  in 
court,  setting  forth  the  proceedings  in  the  suit  for  partition 
and  the  execution  of  the  sheriff's  deed,  alleging  that  by  mis- 
take and  inadvertence  the  entire  tract  of  land  was  included 
in  the  description  of  the  premises  therein  described,  instead 
of  excepting  therefrom  that  part  assigned  to  the  widow  as 


eepted  to,  be  set  aside."  Kerr  v. 
Hooks,  W.  610.  For  division  by 
equal  values  and  not  equal  acreage 
according  to  intent  of  a  testator, 
see  Corwine  v.  Mace,  36  0.  S.  125. 
esGen'I  Code,  §12034  (R.  S. 
§5762).  See  No.  256  and  following 
for  petition,  answers,  writs,  pro- 
cesses in  the  action  from  the  peti- 
tion to  the  delivery  of  the  deed  by 
the  sheriff.     By  the  act  of  1810  ap- 


praisement of  the  real  estate  was 
not  required.  Glover  v.  Ruffian,  6 
O.  255.  Prior  to  the  act  of  March 
29,  1841,  an  appraiser,  in  the  ab- 
sence of  fraud,  could  be  a  purchaser 
at  a  sale  of  the  real  estate  in  par- 
tition. Bohart  v.  Atkinson,  14  0. 
228;  but  such  an  appraiser  can  not 
now  be  a  bidder  at  a  partition  sale 
of  premises  he  assisted  in  apprais- 
ing. 


§  316  MERWINE    ON    REAL    ACTIONS.  390 

her  dower  and  omitted  from  the  appraisement  made  by  the 
commissioners,  praying  that  the  sheriff's  deed,  so  far  as  it 
related  to  the  land  set  off  to  the  widow,  might  be  set  aside. 
It  was  decided  by  the  court  in  this  action,  that  it  was  to  be 
presumed  that  the  "balance"  of  which  in  the  opinion  of  the 
commissioners,  partition  could  not  be  made  without  manifest 
injury,  and  which  they  therefore  appraised,  was  the  whole 
of  the  land  described  in  the  petition,  subject  to  the  dower 
estate.'14 

Where  the  proceedings  in  partition  have  been  regularly 
made,  and  one  of  the  parties  to  the  action  elects  to  take  the 
property  at  the  appraised  value,  as  returned  by  the  commis- 
sioners in  partition,  and  the  election  is  approved  by  the  court, 
and  a  deed  is  ordered  to  be  made  by  the  sheriff  to  the  party 
so  electing,  upon  the  payment  to  each  of  the  heirs  the  part 
of  the  appraised  value  thereof  so  found  to  be  due  them  re- 
spectively, such  proceedings  are  sufficient  to  cast  the  title  of 
the  real  estate  upon  the  party  so  electing  to  take  the  real 
i 'state  as  aforesaid.  In  such  case  the  sheriff  not  having  mad  ■ 
a  deed  to  the  purchaser,  the  title  to  the  real  estate  in  the 
party  so  electing  to  take  the  same,  is  good.6a 

A  part  of  the  land  acquired  in  partition  proceedings  may 
be  regarded  as  coming  to  the  owner  by  descent  and  a  part 
by  purchase.  Where  tenants  in  common  of  land  inherited 
by  them  proceeded  to  make  partition  thereof  under  the  parti- 
tion statutes,  and  one  of  the  parties  elected  to  take  the  land 
as  provided  by  the  statute,  and.  after  obtaining  a  deed  there- 
for pursuant  to  that  section  of  the  statute,  died  intestate,  the 
court  in  determining  the  course  of  the  title,  decided  that  the 
title  to  so  much  of  the  land  as  came  to  the  decedent  by  in- 
heritance, remained  a  title  in  him  by  descent,  notwithstand- 
ing  tin'  proceedings  in  partition;  but  tin1  remaining  title 
acquired  by  such  proceedings  was  a  title  by  purchase.68 

Under  the  older  partition  statutes,  a  person  residing  on 
the  lands  sought  to  be  partitioned  and  aparted,  after  having 
been  given  notice,  and.  on  his  application,  was  ordered  by  the 
court  to  become  a  party  to  the  proceedings  for  partition,  as  a 
tenanl  in  common,  and  upon  the  report  of  the  commissioners 
thai    the    [and    could    not    be    divided,    and    a   return   of  their 

''-•-'"-    v.    Jones,    39    <>.   S.   '.>•">.  '^  Freeman  v.  Allen,  17  0.  S.  527. 

hompsou  v.  Love,   r_>  <).  S.  79. 


391  SALE    OF    REAL    ESTATE    IN    PARTITION.  §  317 

valuation,  the  lands  were  adjudged  to  such  person  0:1  his 
election  to  take  the  same  on  their  valuation  so  returned, 
and  a  deed  was  made  to  him  in  fee  simple  by  the  sheriff 
upon  the  approval  and  order  of  the  court,  such  person  by 
such  act  became  seized  in  fee  of  said  lands,  and  upon  sub- 
sequent discovery  that  the  person  so  electing  and  receiving 
the  conveyance  of  the  land,  had  in  fact,  at  the  time  of  the 
election,  no  interest  therein,  and  not  chargeable  with  fraud, 
his  title  so  acquired  could  not  thereby  be  impeached,  and  his 
only  subsequent  liability  would  be  for  the  payment  of  that 
part  of  the  valuation  of  the  lands  retained  as  his  distributive 
share.07 

If  a  party  elects  to  take  the  property  in  a  partition  pro- 
ceeding and  a  deed  is  made  to  him  by  order  of  the  court, 
and  he  omits  to  have  the  taxes  discharged  before  taking  the 
title,  and  he,  or  his  vendee,  has  to  pay  them,  such  payme.  t 
of  taxes  can  not  be  set  up  as  a  lien  and  recoup  against  notes 
and  mortgage  given  for  the  security  in  the  partition  pro- 
ceedings.68 

Where  a  party  sues  out  certiorari  partition  proceedings,  it 
is  a  good  defense  that  he  still  retains  his  proportions  of  the 
property  where  he  elects  to  take  in  the  court  below.69 

Sec.  317.     Terms  of  payment  when  estate  taken  by  party — 
Execution  of  conveyances. 

If  one  or  more  of  the  parties  elect  to  take  the  estate  at  the 
appraised  value,  the  terms  of  payment,  unless  the  court,  on 
good  cause  shown,  by  special  order  direct  and  require  the 
entire  payment  to  be  made  in  cash,  or  unless  all  the  parties 
in  iiLerest  agree  thereon,  is  required  to  be  one-third  cash, 
one-third  in  one  year,  and  one-third  in  two  years,  with  in- 
terest, the  deferred  payments  to  be  secured  to  the  satisfac- 
tion of  the  court;  and  on  payment  being  made  in  full,  or  in 
part  witli  sufficient  security  for  the  remainder,  as  above 
provided,  the  sheriff  shall,  according  to  the  order  of  tin; 
court,  make  and  execute  a  conveyance  to  the  party  electing 
to  take  the  same.70 

67  Rogers  v.  Tucker,  7  O.  S.  417.  69  Tabor  v.  Wiseman,  2  0.  S.  20!). 

68  Callahan   v.    Rose,  2   W.  L.   B.  ?o  Gen'l     Code,      §120.35      ( R.     S. 
281.                                                                   §5763).     See  No.  270  for  form. 


§§318-321  MEBWINE    ON    REAL    ACTIONS.  392 

Sec.  318.  Sale  of  the  estate  when  parties  do  not  elect  to  take 
the  same. 
If  no  such  election  to  take  the  estate  be  made,  the  court 
may.  at  the  instance  of  a  party,  make  an  order  for  the  sale 
thereof  at  public  auction  by  the  sheriff  who  executed  the 
writ  of  partition,  or  his  successor  in  office.71 

Sec.  319.     How  such  sale  conducted  and  the  terms  thereof. 

All  such  sales  must  be  made  at  the  door  of  the  court  house, 
unless  the  court,  for  good  cause,  direct  the  same  to  be  made 
on  the  premises,  and  must  be  conducted  in  all  other  respects 
as  a  sale  upon  execution,  except  that  it  shall  not  be  necessary 
to  appraise  the  estate;  but  the  estate  can  not  be  sold  for 
less  than  two-thirds  of  the  appraised  value  thereof,  as  re- 
turned by  the  commissioners;  and  unless  the  court,  by  special 
order,  direct  and  require,  on  pood  cause  shown,  the  entire 
payment  to  be  made  in  cash,  the  purchase  money  must  be 
payable  one-third  on  day  of  sale,  one-third  in  one  year  and 
one-third  in  two  years  thereafter  with  interest.72 

Sec.  320.  Confirmation  of  sale  and  execution  of  conveyances. 
On  return  of  the  sheriff  of  his  proceedings,  the  court  will 
examine  the  same;  if  the  sale  has  been  made,  and  the  court 
approve  such  sale,  the  sheriff,  on  receiving  payment  of  the 
consideration  money,  or  taking  sufficient  security  therefor, 
1o  the  satisfaction  of  the  court,  will  be  required  to  execute 
and  deliver  a  deed  to  the  purchaser.73 

Sec.  321.     Distribution  of  proceeds — Sheriff's  liability. 

The    money   or   securities    arising   from    the    sale    of,    or   an 
election   to  lake  the  estate,  must  be  distributed  and  paid  by 

■  i<  ■  n'l     Code,     112036     (R.     S.  and  indispensable  to  invest  the  pur- 

:>7    ;    .     See   No.  27<5  for  form.  chaser   with   title,  and   that   a  deed 

-Cii'l     Code,     g  12037     (It.     S.  from  the  sheriff  not  sealed,  was  in- 

,.")i.  sufficient   to   protect   the   purchaser 

n'l     Code,     S  12038      (R.     S.  in  his  title;    but  see  Doe  v.  Dugan, 

See  No.  272  for  order  con-  8  0.  87,  and  Goudy  v.  Shank,  8  O. 

ferri  i     sale;    see   No.  Ill   for  form  415,   in  which   there   was   a    holding 

foT  deed.     It    was   held   in   Lessee  v.  that  the  title  <>f  the  purchaser  in  a 

Merritt,    .-,    <  >.    s.    308,    thai    under  Bale,   on    proceedings    for    partition, 

the  ad   of   1820,  a   deed  of  convey-  is  no1  affected  by  a  failure  to  maice 

ance  from  the  sheriff,  duly  executed,  return    of   the    purchase   money    or 

was    by    that    acl    necessary    to    a  obligations  into  court. 

mplete    execution    of    the    power, 


393  SALE    OF    KEAL    ESTATE    IN    PARTITION.  §  321 

order  of  the  court,  to  the  parties  entitled  thereto,  in  lieu  of 
their  respective  parts  and  proportions  of  the  estate,  accord- 
ing to  their  just  rights  therein;  and  all  receipts  of  such  money 
or  securities  by  the  sheriff  shall  be  in  his  official  capacity  and 
his  sureties  on  his  official  bond  will  be  liable  for  any  mis- 
application thereof.74 

The  purpose  and  object  of  the  statute  in  taking  the  securi- 
ties and  giving  time  for  the  payment  of  the  purchase  money 
is  not  to  provide  a  mode  of  investment  for  the  benefit  of  the 
parties  to  the  partition,  but  is  for  the  object  and  purpose  of 
encouraging  bidders  and  thus  effecting  a  better  sale  of  the 
property.75 

In  all  partition  proceedings,  where  the  sheriff  takes  securi- 
ties in  his  own  name  from  the  purchaser  for  the  deferred 
payments,  and  afterwards  receives  payment  thereof  and  can- 
cels the  same  of  record,  the  title  to  the  real  estate  par- 
titioned of  the  purchaser  at  such  sale,  his  mortgage  and  its 
discharge  by  the  sheriff  being  matters  of  record,  parties  re- 
ceiving conveyances  from  him  are  affected  with  constructive 
notice  of  the  lien  of  the  parties  for  whose  use  the  mortgage 
was  made.76  And  it  has  been  held  that  in  proceedings  in 
partition  resulting  in  a  sale  of  the  land,  such  proceedings 
charge  the  purchaser  with  notice  that  the  securities  taken  by 
the  sheriff  from  the  purchaser  for  the  deferred  payments  are 
trust  funds  and  the  purchaser  is  required  to  see  that  the 
purchase  money  is  properly  applied.77  The  liability  of  the 
sheriff  and  his  bondsmen  extend  even  after  the  expiration  of 
his  term  of  office,  and  on  his  failure  to  deliver  to  the  proper 
parties,  in  accordance  with  the  order  of  the  court,  notes  taken 
in  partition  proceeding  during  his  term  of  office,  for  the 
purchase  money  for  the  property  so  sold  in  such  partition, 
said  sheriff  and  his  bondsmen  are  liable.78 

In  such  actions  where  the  sheriff  converts  to  his  own  use 
notes  thus  given  for  the  purchase  price  of  real  estate  sold  in 
partition,  the  measure  of  the  damages  in  an  action  brought 
for  such  conversion  is  the  face  of  the  notes.79     A  sheriff  who 

"Gen'I     Code,     §12039      (R.     S.  78  Brobst  v.  Skillen,  16  O.  S.  382. 

§5767).  79  Brobst  v.  Skillen,  1(5  0.  S.  382; 

75  Brobst  v.  Skillen,  16  0.  S.  382.  Sedgwick     on      Damages,      488;      2 

76  Welsh  v.  Freeman.  21  O.  S.  402.  Greenl.  Ev.,   §§  276,  640;    Mercer   v. 

77  Preston   v.    Compton,   30    0.    S.  Jones,   3   Camp.   Rep.   477;    Romig's 
299.  Adm'r  v.  Romig,  2  RawPs  Rep.  211 ; 


§321 


MERWINE    ON    REAL    ACTIONS. 


394 


thus  takes  the  notes  of  the  purchaser  of  land  at  a  sale  in 
partition  proceedings,  and  fails  to  deliver  the  same  to  the 
proper  parties,  the  money  paid  him  on  a  note  and  mortgage 
so  taken,  is  liable  therefor,  although  no  special  order  of  dis- 
tribution thereof  is  made  by  the  court,  and  although  the 
money  was  paid  him  after  the  expiration  of  his  term  of  office; 
and  if  the  sheriff  by  mistake  pays  the  money  due  on  such 
notes  to  the  attorneys  who  procured  the  partition  sale,  but 
who  were  not  specially  authorized  to  receive  the  same,  either 
by  the  parties  entitled  thereto,  or  by  order  of  court,  such 
liability  of  said  sheriff  is  not  discharged;  and  such  liability 
may  be  enforced  by  suing  the  sheriff  in  such  action  as  "late 
sheriff  of County."  80 

In  considering  questions  of  this  kind  now  here,  it  was  said : 
"Without  reference  to  what  may  be  the  law  on  this  subject 
in  other  States,  it  was  settled  in  this  State  that  where  the 
money  was  received  by  the  sheriff  in  his  official  capacity,  the 
duty  of  holding  and  properly  disposing  of  it  was  an  official 
duty  devolving  upon  him  while  in  office,  and  although  his 
term  ends,  the  duty  continues  until  discharged."81 

The  notes  and  securities  received  by  the  sheriff  in  a  sale 
of  real  estate  in  partition  proceedings  belong  to  the  parties 
entitled  under  the  statute  to  receive  them  in  lieu  of  the  land, 
and  the  sheriff  is  not  authorized,  by  virtue  of  his  office,  to 
receive  amounts  secured  thereby,  nor  to  discharge  the  pur- 
chaser from  liability  to  the  narties  to  whom  the  purchase 
money   is  due.82 


(yDonohue  v.  Corby,  22  Mo.  Hep. 
394;  Menkins  v.  Menkins,  23  Mo. 
Rep.  252. 

-"(akin  v.  Bruen,  79  0.  S.  610, 
from  which  we  quote  the  following 
from  i  he  opinion  in  said  case:  ''The 
c  ise  of  Preston  v.  (  ompton,  .'!'»  ' >. 
S.  299,  is  imt  like  this  case.  I  lie 
defendants  in  error  <-,m  stand  on 
their  own  rights  and  thsy  can  hold 
the  plaintiff  in  error  liable?  for  the 
money  bo  received  for  tlvro  by  him, 
whether  he  obtained  it  rightfully  or 
wrongfully  a^  sheriff  <>r  after  his 
term  of  office  expired.  The  cs 
Brobat  ■•.  Skillen,  16  <>.  =5.  382,  sus- 
tains t  in  j  conclusion." 

Alexander,  :!1    0.   P. 


378.  Tn  this  case  it  was  said  that 
previous  to  the  act  of  April  M), 
1808,  there  was  no  law  in  this  Mate 
authorizing  or  requiring  an  out- 
going  sheriff  to  deliver  ovjr  to  his 
successor  moneys,  notes  or  mort- 
gages received  and  taken  by  him  i;i 
his  official  capacity,  the  transaction 
in  this  case  occurring  before  ihis 
act  was  passed,  and  the  Cflso  must 
be  governed  by  the  law  'is  it  stood 
at  the  time  the  transaction  oc- 
curred. In  fiis  c  niii"!-'  ion,  1  he 
COUrl  recited  the  ease  of  Kin-*  V. 
Nichols,  16  0.  S.  70:  15m!  st  v.  Skil- 
len. 16  O.  s.  :!S:>;  Griffin  v.  Under- 
wood, ie  0.  s.  :(so. 

82  Walsh  v.   Freeman.  21  O.  S.   102. 


395 


SALE  OF   REAL   ESTATE    IN    PARTITION. 


§§322,323 


Sec.  322.     Proceedings  when  an  estate  has  been  once  offered 
and  not  sold. 

When  an  estate  has  been  once  offered  and  not  sold,  an 
alias  writ  for  the  sale  thereof  may  issue  as  often  as  need  be ; 
and  the  court  may  order  a  revaluation,  by  three  disinterested 
and  judicious  freeholders  of  the  vicinity,  to  be  appointed  by 
the  court,  and  direct  a  sale  of  the  estate  at  not  less  than 
two-thirds  of  such  revaluation ;  or,  if  the  court  deem  it  for 
the  interest  of  the  parties,  it  may  order  a  sale  without  such 
revaluation,  at  not  less  than  such  sum  as  it  may  fix.83 

Sec.  323.     When  successor  of  sheriff  who  made  sale  to  execute 
conveyance. 

When  a  conveyance  of  land  sold,  or  elected  to  be  taken,  is 
not  made  by  the  officer  who  made  the  sale,  the  court,  being 
first  satisfied  that  such  a  sale  or  election  is  regularly  made, 
and  that  the  purchase  money  has  been  fully  paid  or  secured, 
may,  on  motion,  order  the  sheriff  of  the  county  or  officer  per- 
forming the   duties  of  sheriff,   to  execute  and   deliver  to   the 


The  statute  under  which  '.he  fore- 
going decision  was  rendered  pro- 
vided that  upon  the  return  of  the 
sheriff  of  his  proceedings,  the  same 
shall  be  subject  to  the  examination 
of  the  court;  and  if  the  sale  has 
been  made,  and  the  same  is  ap- 
proved by  the  court,  the  sheriff,  on 
receiving  the  payment  of  the  con- 
sideration monej',  or  taking  suffi- 
cient security  therefor,  to  the  satis- 
faction of  the  court,  shall  execute 
or  deliver  a  deed  or  deeds  to  the 
purchaser  or  purchasers  of  the  es- 
tates so  sold,  and  the  said  money  or 
securities  shall  be  distributed  and 
paid  by  order  of  the  said  court  to 
and  amongst  the  several  parties 
entitled  to  receive  the  same,  in  lieu 
of  their  respective  parts  or  propor- 
tions of  said  estate  or  estates,  ac- 
cording to  their  just  rights  and 
proportions.  And  that- in  all  sales 
made  by  the  sheriff  pursuant  to  an 
order  in  case  of  partition,  unless 
the  court  shall,  by  special  order, 
direct  and  require,  on  good  cause 
shown,  the  sale  to  he  made  for 
cash  down,  the  purchase  money  shall 


be  payable  one-third  on  the  day  of 
sale,  one-third  in  one  year  and  one- 
third  in  two  years  thereafter,  with 
interest,  the  deferred  payments  to 
be  secured  to  the  parties  agreeably 
to  the  respective  interests,  accord- 
ing to  the  tenth  section  of  the  act 
before  mentioned. 

If  the  order  confirming  a  par- 
tition sale  directs  a  sheriff  to  take 
a  note  secured  by  mortgage  for  the 
deferred  payment  of  the  purchase 
money,  but  is  silent  in  whoss  name 
the  note  and  mortgage  should  be 
taken,  the  sheriff  should  follow  the 
direction  of  the  statute,  and,  when 
there  are  several  parties  in  inter- 
est, take  a  note  in  the  name  of  each 
party  in  interest  for  such  party's 
share  of  the  deferred  payment,  and 
take  a  mortgage  in  the  name  of  the 
parties  to  secure  the  several  notes, 
cause  the  mortgage  to  be  recorded, 
and  distribute  the  notes  to  the  bene- 
ficiaries. Preston  v.  Compton,  30  O. 
S.   299. 

ssGen'l  Code,  §12040  (R.  S. 
§5768). 


§324 


MERWINE   ON    REAL   ACTIONS. 


396 


purchaser  or  person  electing  to  take  the  property  a  aeed  for 
the  land  so  sold  or  elected  to  be  taken.84 


Sec.  324.  When  widow  is  entitled  to  dower,  or  an  interest  is 
subject  to  a  life  estate. 

When  a  widow  is  entitled  to  dower  in  an  estate  in  which 
partition  is  sought,  dower  must  be  assigned  her  therein,  except 
in  the  following  cases:  (a)  When  an  assignment  thereof  has 
already  been  made,  (b)  When  she  has,  by  answer,  elected  to 
be  endowed  out  of  the  proceeds  of  a  sale  of  the  estate,  and  the 
commissioners  do  not  make  partition,  but  return  a  valuation 
of  the  estate,  (c)  When  the  right  of  dower  extends  only 
to  an  undivided  interest  in  the  estate.  In  the  latter  case, 
and  in  cases  where  an  undivided  interest  is  subject  to  a  life 
estate,  and  the  tenant  for  life  has  not,  by  answer,  elected  to 
receive  the  value  of  his  estate  out  of  the  proceeds  of  a  sale 
of  the  interest,  the  commissioners  may,  if  an  appraisement  of 
the  estate  is  to  be  returned,  assign  the  dower,  or  set  off  the 
life  estate,,  or,  if  they  find  it  for  the  interest  of  the  parties  so 
to  do,  they  may  appraise  the  whole  interest,  and  the  widow 
and  the  tenant  for  life  shall  receive  the  value  of  their  interest 
out  of  the  proceeds  of  the  sale  thereof.85 

As  this  subject  is  fully  set  forth  in  this  book  in  the  chapter 
on  dower,  we  here  cite  in  the  note  below  the  cases  applicable 
to  dower  in  partition.  But  it  must  be  kept  in  mind  that  in 
partition  proceedings,  under  the  statute,  the  court  has  full 
power  to  assign  dower  in  a  special  manner  or  otherwise  than 
by  metes  and  bounds,  as  it  has  in  cases  of  petition  for  dower; 
and  dower  may,  in  such  cases,  be  assigned  in  the  form  of  a 


84Gen'l  Code,  §12041  (R.  S. 
§€769).  "By  the  act  to  which  ref- 
erence has  been  made  ( Partition 
Ad  of  L820),  in  case  of  a  sale  of 
the  property  upon  proceedings  in 
partition,  a  deed  of  cnnvcyaniT  from 
the  sheriff,  duly  executed,  was  mad:' 
necessary  to  a  complete  execution 
of  the  power,  and  indispensable  to 
I  the  purchasers  to  the  legal 
title.  The  deed  acquired  must  be 
ed  and  8< "/-  d  by  the  sheriff  in 
the  presence  of  witnesses,  and  such 
Bigning  and  sealing  acknowledged 
by   him   in  open  court.     An   instru- 


ment of  writing  duly  acknowledged, 
but  without  being  sealed  by  the 
sheriff,  is  insufficient,  and  the  addi- 
tion of  a  seal  many  years  afterward 
without  another  acknowledgment, 
will  not  make  it  available  in  a 
court  of  law,  to  protect  a  purchaser 
i Ti  an  action  of  ejectment  brought 
by  the  infant  or  by  one  who  has 
succeeded  to  heT  estate."  Lessee  v. 
Borne,  5  0.   S.  318. 

BsGen'l  (ode.  §  12D42  (R.  S. 
§3770).  See  No.  262  for  form  of 
answer  setting  up  widow's  dower. 


397 


SALE    OF    REAL    ESTATE    IN    PARTITION. 


§325 


life  annuity,  and  made  a  charge  upon  part  of  the  real  estate 
partitioned.86 

If  a  widow  who,  in  a  partition  case,  nies  her  answer,  asking 
for  sale  and  dower  in  proceeds,  and  dies  pending  the  proceed- 
ing, and  before  final  decree,  the  action  may  be  revived  in  the 
name  of  her  administrator  and  he  will  be  entitled  to  what- 
ever her  dower  is  worth  from  the  time  of  filing  her  answer 
and  cross-petition  in  the  case  to  the  time  of  her  death,  and 
the  court  can  not  authorize  the  commissioner  in  such  case  to 
fix  the  amount  of  the  dower.87  A  doweress  can  not  be  de- 
prived of  her  rights  in  oil  produced  from  a  tract  of  land, 
by  an  order  made  in  probate  court,  upon  confirmation  in  par- 
tition proceedings.  Such  an  order  is  coram  non  judice  and 
void,  and  is  not  a  bar  to  her  right  to  recover.88 

If  at  the  time  co-devisees  under  a  will  partition  an  estate, 
one  of  them  has  an  inchoate  right  of  dower  therein,  and  sub- 
sequently this  inchoate  right  of  dower  becomes  absolute  by 
the  death  of  the  husband,  she  will  not  be  estopped  in  equity 
from  claiming  her  dower  against  her  co-partitioners.89 

Sec.  325.     Commissioners  appointed  to  partition  the  estate  to 
assign  dower. 

The  commissioners  appointed  by  the  court  to  make  partition 
are  required  to  set  off  to  such  widow  her  dower  in  the  estate- 


86  Miller  v.  Peters,  25  0.  S.  270. 
Sale  under  partition  proceedings 
divests  dower  and  the  wife  of  a 
tenant  in  partition  is  not  a  neces- 
sary party.  Weaver  v.  Gregg,  6  O. 
S.  547,  citing  Jackson  v.  Edwards, 
7  Paige,  386;  Moore  v.  Mayor,  4 
Seldon,  110.  In  case  of  parol  par- 
tition long  acquiesced  in  and  bind- 
ing, a  wife  is  dowable  only  in  the 
portion  assigned  to  her  husband  in 
such  parol  partition.  Doctorman  v. 
Elder,  27  W.  L.  B.  195;  Smith  v. 
Rothschild,  4  C.  C.  545,  which  holds 
contrary  to  Weaver  v.  Gregg,  that 
the  widow  is  a  necessary  and  proper 
party  and  whose  dower  interest, 
while  divested  by  sale,  attaches  to 
proceeds  of  sale.  Mandel  v.  Mc- 
Clave,  46  0.  S.  107,  and  authorities 
there  reviewed. 

V\  here     the     court     so     assizer! 
dower  in  a  partition  case,  and  there- 


upon made  an  order  requiring  the 
parties  in  partition,  or  their  repre- 
sentatives or  assigns,  to  pay  the 
installments  of  annuity  as  they 
should  fall  due,  and  directing  exe- 
cution to  issue  in  case  of  default: 
Held,  That  this  order  was  void 
for  uncertainty;  that  no  execu- 
tion thereon  could  lawfully  issue 
against  the  parties  to  the  partition ; 
and  that  the  proper  remedy  of  the 
doweress  was  by  action  to  enforce 
the  lien  on  the  real  estate  so 
charged.  Miller  v.  Peters,  25  0.  S. 
270. 

"Renner  v.  Bird,  2  W.  L.  B.  77. 

ss  Wilfred  v.  Heimhoffer,  2  C.  C. 
N.  S.  369;  Crocket  v.  Crocket.  52 
W.  W.  Rep.  299;  Spores  v.  Coen, 
44  0.  S.     497. 

89  Walker  v.  Hall,  15  O.  S.  355 
"In  such  case  equity  will,  while  sus- 
taining the  claim   to   dower,  decree 


§326 


MERWINE    ON    REAL    ACTIONS. 


398 


and  in  the  performance  of  such  duty  they  are  to  be  governed 
in  all  respects  by,  and  the  proceedings  must  conform  to  the 
provisions  prescribing  the  duties  of  the  commissioners  in  as- 
signing dower,  under  the  statute.90 


Sec.  326.     Partition — Power  of  guardian  to  act  for  ward. 

The  guardian  of  a  minor,  idiot,  imbecile  or  insane  person 
may.  <m  behalf  of  his  ward,  do  and  perform  any  act,  matter 
or  thing  respecting  the  partition  of  an  estate  which  such 
minor,  idiot,  imbecile,  or  insane  person  could  do  under  the 
partition  statutes,  if  he  were  of  age  and  of  sound  mind ;  and 
he  may  elect  on  behalf  of  such  ward  to  take  the  estate  when 
the  same  can  be  divided  without  injury,  and  make  payment 
therefor  on  behalf  of  such  ward.91  In  the  action  for  partition, 
where  a  minor  is  a  co-tenant,  both  the  infant  and  his  guardian 
should  be  made  parties  defendant.92 

For  a  complete  discussion  of  the  subject  of  a  defense  by  an 
infant,  his  answer  in  a  proceeding,  the  manner  of  the  appoint- 


and  enforce  a  contribution  by  all 
the  parties  to  the  partition,  to  make 
good  to  the  co-devisees,  in  whose 
share  the  dower  is  assigned,  their 
equal  share  in  the  common  estate 
remaining  after  the  assignment  of 
dower."  Walker  v.  Hall,  15  0.  S. 
355;  Wash,  on  Real  Prop.,  4S1-2; 
Venable  v.  Beauchainp.  3  Dana.  321; 
Feather  v.  Strohecker,  3  Penn.  R. 
505;  Jones  v.  Stanton,  11  Mo.  433: 
Woodbridge  v.  Panning,  14  O.  S. 
328. 

soGen'l  Code.  §12043  (P.  S. 
S  5771  I.  See  also  Gen'l  Code.  §  L2009 
and  8  12IH0  (P.  S.  §  5712  and 
Soil.'!    :i-   to    assignment    of   dower. 

•••  Gen'l     Code,     §  12044      i  P.     S. 
\u~rl   .     "The  provision  that  a  guar 
(Han    may    do    any    act     in     reference 

tn  the  pa  1 1  it  ion  of  any  estate  that 

the    ward    could    do    if    of    age.    Gen'l 

I  !02S    and    S  1204  I     I  ':.    S. 

56,  §5772),  authorizes  t  he  guar- 
dian to  bring  the  action.  The  con- 
trary legislative  effecl  can  not  be 
inferred  from  the  fact  thai  the  ex- 
press authority  to  bring  such  action 
was  contained  in  (lie  act  of  1820, 
and   was  omitted   in   the  act    of    1831; 


like  the  act  now  in  force,  the  act 
of  1820  not  being  limited  to  guar- 
dians and  minors,  and  as  partition 
a  fleets  possession,  and  not  title, 
such  inference  would  be  unreason- 
able." Lang,  etc.,  v.  Bernard.  6  W. 
L.  B.  635. 

In  Lessee  of  Merritt  v.  Borne,  5 
0.  S.  318,  it  was  held  that:  "By 
the  partition  act  of  1820  (2  Chase's 
St.  1162).  the  guardian  of  an  in- 
fant was  authorized  to  appear  for 
his  ward  and  to  consent  that  par- 
tition be  made:  and  it  is  expressly 
declared.  'That  the  same  shall  be 
deemed  as  valid  and  effectual  in 
law  to  every  intent  and  purpose, 
as  if  the  same  had  been  dime  by 
such  minor  after  his  arrival  at  full 
age.' 

"In  this,  as  in  all  other  judicial 
proceedings  of  a  court  of  record  of 
competent  jurisdiction,  the  record 
imports  absolute  verity;  and  the 
finding  of  such  a  court,  that  the 
person  assuming  to  act  as  guardian 
was  in  fact  such,  is  sufficient   prima 

facie   lo  show    that    the  court  had  ob- 
tained  jurisdiction  over   the  ward." 
'2 Lowe   \.   Maurer,   1   Cleve.   157. 


399  SALE  OF   REAL   ESTATE    IN    PARTITION.  §§  327-329 

merit  of  a  guardian  ad  litem  of  an  infant,  service  of  summons 
upon  the  infant,  and  the  defense  of  the  guardian  ad  litem, 
the  reader  is  referred  to  the  first  chapter  of  this  book. 

Sec.  327.     Powers  of  foreign  guardian. 

A  person  appointed  according  to  the  laws  of  any  other 
State  or  county,  to  take  charge  of  the  estate  of  an  idiot  or 
insane  person  not  a  resident  of  this  State,  may,  upon  being 
duly  authorized  in  this  State  to  take  charge  of  such  estate 
situated  in  this  State,  act  in  the  partition  of  such  estate  to 
the  same   extent  that  the  guardian  of  an  idiot,  or  an  insane 

person  is  authorized  to  do  by  Section  of  the  Revised 

Statutes.93 

Sec.  328.     Action  by  one  parcener  against  another  for  rents 
and  profits,  etc. 

One  tenant  in  common,  or  co-parcener,  may  recover  from 
another  his  share  of  rents  and  profits  received  by  such  tenant 
in  common  or  co-parcener  from  the  estate,  according  to  the 
justice  and  equity  of  the  case ;  and  one  parcener  may  main- 
tain an  action  of  waste  against  another;  but  no  parcener  can 
have  or  possess  any  privilege  over  another,  in  any  election, 
division,  partition,  or  matter  to  be  made  or  done  concerning 
lands  which  have  descended.94 

Sec.  329.     Rents  and  crops — Apportionment  in  case  of  sale. 

In  construing  this  section  of  the  partition  statute,  it  was 
said  by  Owen,  C.  J.,  that  the  voluntary  and  profitable  use, 
occupation  and  enjoyment  by  a  tenant  in  common  of  the 
common  estate,  creates  a  liability  against  him  to  account  to 
the  out-tenant  as  for  his  share  of  the  rents  and  profits  received 
by  the  former,  according  to  the  justice  and  the  equity  of  the 
case.  And  in  cases  where  no  demand  has  been  made  for  the 
possession  of  the  premises  nor  for  the  value  of  their  yearly 
use,  interest  can  not  be  claimed.95 

It  would  seem  better  for  all  parties  interested  that  when  a 
sale  is  made  in  partition  of  premises  occupied  by  a  tenant 
who  owes  rent  not  yet  due,  the  terms  of  such  sale  should  be 

93Gen'l     Code,     §12045      (R.     S.  94  Gen '1      Code,     ?  12046      (R.     S. 

§5773).  §5774). 

as  West  v.  Meyer,  46  0.  S.  <36. 


§  330  MEKWINE   ON    REAL   ACTIONS.  400 

expressed  as  to  whether  the  purchaser  at  the  sale  shall  have 
such  rents  or  whether  the  same  should  go  back  to  the  par- 
ceners. In  a  case  where  a  sale  of  real  estate  was  made  on 
partition,  and  at  the  time  of  the  sale,  and  as  a  part  of  its 
terms,  the  possession  of  the  premises  was  reserved  to  the  ten- 
ants in  common  until  the  expiration  of  a  certain  lease,  and 
the  deed  to  the  purchaser  was  not  executed  and  delivered 
until  after  the  expiration  of  such  lease,  it  was  adjudged  that 
the  tenants  in  common,  and  not  the  purchaser,  were  entitled 
to  the  rent  reserved  in  the  lease.96  It  has  always  been  a  set- 
tled rule  of  law  in  this  State  that  growing  crops  on  property 
sold  at  judicial  sale  do  not  go  to  the  purchaser,  and  the  same 
rule  holds  in  case  of  a  sale  of  real  estate  in  partition.97 

Sec.  330.     Absence  of  seven  years,  presumption  as  to — Pur- 
chaser entitled  to  improvements,  when. 

The  owner  of  two  undivided  sevenths  of  certain  real  estate 
had  been  absent  and  unheard  of  for  about  thirty  years,  when 
proceedings  to  partition  the  same  were  instituted  by  persons 
who  would  have  been  his  heirs,  had  he  been  deceased.  The 
premises  involved  in  the  action  were  not  divisible  without 
manifest  injury  to  the  value  of  the  land.  The  premises  were 
sold  by  the  order  of  the  court,  and  the  owner  of  the  remain- 
ing five-sevenths  of  the  real  estate  became  the  purchaser  and 
afterwards  made  valuable  improvements  thereon.  By  such 
purchase  the  purchaser  acquired  no  title  to  the  interest  of  the 
former  owner  of  the  undivided  two-sevenths  interest  in  said 
land,  but  such  purchaser  did  not  lose  his  right  to  compensa- 
tion for  the  improvements  he  had  placed  on  the  land,  and  in 
.■mother  action  for  partition  between  the  original  owner  of 
the  two-sevenths  interest  in  said  real  estate  and  the  purchaser 
.it  said  sale,  and  in  the  partition,  the  person  entitled  to  such 
improvement  must  be  compensated  therefor.98 

A  eourl  of  equity  has  the  power  in  partition  to  allow  a 
party  for  improvements  made  on  the  real  estate  to  be  paid 
out  of  the  proceeds  of  snle.  The  claim,  however,  is  not  a  lien 
to  be  paid   in   full,  bu.1   it   is  rather  in  the  nature  of  an  invest- 

»•  Black   v.  George,  26  0.  S.  629.  »s  Youngs  v.  Heffner,  36  O.  S.  232. 

»i  Bouta   v.   Showalter,   10   O.  S. 
12*5;    Casselly   v.   Rhodes.   12  O.  88. 


401  SALE    OF    REAL    ESTATE    IN    PARTITION.  §  331 

ment  in  the  property,  and  if  the  property  should  depreciate, 
the  investment  should  depreciate  accordingly." 

The  legal  presumption  of  death  in  such  proceeding  which 
arises  from  the  absence  of  one  from  his  home  for  the  period 
of  seven  years,  and  who  in  the  meantime  has  not  been  heard 
of,  is  but  prima  facie  evidence  of  the  fact,  and  may  be  rebutted 
by  counter-proof.1 

And  it  has  been  held  that  where  tenants  in  common  make 
a  partition,  and  each  sells  to  purchasers,  and  the  partition 
becomes  void  in  consequence  of  a  failure  of  title  from  one 
of  the  parties  to  the  partition,  the  purchasers  from  the  tenant 
in  common  whose  title  is  good,  may  rightly  protect  their 
separate  interests  under  the  void  partition,  if  it  can  be  done 
consistently  with  the  entire  preservation  of  the  rights  of  the 
successful    claimant.2 

Sec.  331.     Partition  of  property  belonging  to  religious   cor- 
poration. 

"When  two  or  more  religious  denominations,  or  other  societies 
or  associations,  have  united  in  a  corporation,  and  as  such 
corporation  acquire  title  to  real  estate  in  this  State,  and  sub- 
sequently agree  to  separate  and  form  two  or  more  separate 
corporations  under  the  laws  of  the  State,  either  corporation, 
after  such  separate  organization,  may  file  its  petition,  under 
the  partition  statute,  for  partition  of  such  property  so  ac- 
quired and  held.3 

When  two  or  more  religious  societies  or  congregations  have, 
by  gift  or  purchase,  acquired  lands  upon  which  to  erect  a 
house  of  public  worship  and  other  buildings  for  church  or 
school  purposes,  and  for  a  cemetery  in  common,  and  either 
of  such  societies  or  congregations  desire  to  abandon  the  joint 
use  of  such  house  of  public  worship,  or  other  erections,  it 
may  commence  an  action  for  the  partition  of  the  use  of  such 
common  property,  except  the  cemetery,  which  may  continue 
to  be  used  in  common.4 

9»  Wachenheimer   v.    Standart,    10  §5776).     For  a  case  concerning  the 

C    C.  C93.  religious    society    of    the    "Separa- 

i  Youngs  v.  Heffner,  36  0.  S.  232.  tists'  Society  of  Zoar,"  see  Gaselys 

2  Dawson  v.  Lawrence,  13  O.  544.  v.    Separatists,   etc.,    13    0.    S.    145. 

3Gen'l      Code,      §12047      (R.      S.  See  §  347  and  following  for  subject 

§5775).  of   sale  of  real   estate  belonging  to 

•   *Gen'l     Code,     §12048      (R.     S.  religious  societies. 


§§  332,  333  MERWINE    ON    REAL    ACTIONS.  402 

Sec.  332.  When  such  partition  can  be  made  and  effect 
thereof. 
If  the  court  find  that  partition,  in  cases  mentioned  in  the 
last  section,  can  be  made  in  such  manner  so  as  to  occasion 
no  confusion  or  inconvenience  to  either  party  in  the  separate 
use  of  the  common  property,  it  may  order  partition  thereof 
to  be  made:  it  must  specify  in  the  judgment  for  what  purpose 
partition  of  the  use  is  made,  and  how  and  for  what  purpose 
the  use  of  the  premises  allotted  to  each  party  shall  be  oc- 
cupied; and  in  no  case  shall  the  same  or  any  part  thereof 
be  occupied  for  any  other  purpose  than  the  erection  of  a 
house  of  worship,  and  other  erections  connected  therewith.5 

Sec.  333.     Cost  and  expenses  to  be  equitably  taxed  in  parti- 
tion proceedings. 

The  court,  having  regard  to  the  interests  of  the  parties, 
and  the  benefit  each  may  derive  from  a  partition,  and  accord- 
ing to  equity,  is  required  to  tax  the  cost  and  expenses  which 
accrue  in  the  action,  including  reasonable  counsel  fees,  to  be 
paid  to  plaintiff's  counsel,  unless  the  court  awards  some  part 
thereof  to  other  counsel  for  service  in  the  case  for  the  common 
benefit  of  all  the  parties;  and  execution  may  issue  therefor  as 
in  other  cases.6 

Only  such  attorney  fees  can  be  taxed  as  costs  under  the 
terms  of  this  statute  as  are  rendered  for  the  common  benefit 
of  all  the  parties  to  the  proceedings;  and  the  court  has  no 
power  or  authority  of  law  to  tax  into  the  costs,  attorney  fees 
for  services  rendered  for  litigation  between  parties  to  the  suit. 
And  where  an  attorney  makes  an  agreement  with  the  plaintiff 
for  the  amount  of  his  compensation  and  for  his  services  in 
the  proceedings,  by  this  agreement  he  waives  his  right  to  ask 
the  court  to  fix  his  compensation  and  tax  the  same  as  a  part 
of  the  costs  in  the  case.7 

A  fee  to  an  attorney  for  services  rendered  in  resisting  the 
application  for  partition  can  not  be  allowed  and  taxed  as 
costs  in  the  case.8 

a'l     Code,     §12040      (R.     S.      goe  v.  Crawford,  51    111.240;  Stem- 

;;   .  pel    \.  Thomas,   so    111.    147;    Build- 

BGen'l      Code,     >  L2050      (R.     S.       ing,    etc.,    v.    Loyings,    142    1'u.    St. 

121  ;    Colea    v.    I  oles,    L3    X.   J.    Eq. 
young   v.   Stone,   55   0.   S.    125;       365. 
Grubb'a   Appeal    B2    Pa.  St.    L;    Kil-  « Low.-  v.   Phillips,  21    O.  S.  G57. 


403 


SALE  OF   REAL   ESTATE   IN   PARTITION. 


§§334,335 


But  a  fee  should  be  allowed  and  taxed  as  costs  in  a  case 
where  an  attorney  demurs  to  the  petition  oil  the  ground  of 
a   defect    of  parties  which    is   sustained   and   new   parties  are 


brought  into  the  ease.9 


Sec.  334.     Certificate  from  court — Partition  and  deficiency  of 

assets. 

If  at  any  time  after  the  institution  of  proceedings  for  the 
partition  of  lands  of  any  deceased  person,  it  is  found  that 
the  assets  in  the  hands  of  the  executor  or  administrator  of 
such  deceased  are  probably  insufficient  to  pay  the  indebted- 
ness of  the  estate  and  expenses  of  administration,  the  execu- 
tor or  administrator  is  required  to  make  a  written  statement 
to  the  probate  court  of  the  assets  and  indebtedness  and  ex- 
penses, and  the  court  must  forthwith  ascertain  the  amount 
necessary  to  pay  said  indebtedness  and  expenses  in  addition 
to  the  assets,  and  give  a  certificate  thereof  to  the  executor 
or  administrator.10 

A  proceeding  under  these  statutes  (Gen'l  Code  §§  10818, 
10819  [R.  8.  §§6173.  6174])  to  procure  a  certificate  of  in- 
debtedness to  file  in  a  suit  in  partition  is  one  to  sell  lands  to 
pay  debts,  and  where  the  claims  for  the  payment  of  which 
the  sale  of  land  is  required  include  one  due  the  executor, 
the  heirs  should  have  notice  and  be  allowed  to  defend  against 
it.  if  such  claim  is  denied.11 


Sec.  335.     Court  shall  order  proceeds  of  partition  sale  paid 
over  to  administrator  or  executor,  when. 

The  executor  or  administrator  is  required  to  present  this 
certificate  to  the  court  in  which  the  proceedings  for  partition 
are.  or  have  been  pending,  and  on  his  motion  the  court  will 
order   the   amount   named   in    the   certificate   as   necessary,    to 


9  Leyman  v.  Leyman,  19  C.  C.  054. 
io  Gen'l  Code/  §10818  ( R.  S. 
§0173).  See  Form  No.  280  for  cer- 
tificate. "A  journal  entry,  under 
which  a  certificate  of  indebtedness 
is  issued  by  the  Probate  Court  for 
the  purpose  of  filing  the  same  in  a 
partition  nit  in  the  Common  P'ea-. 
and  obtaining  money  to  pay#debts, 
as  authorized  by  Gen'l  Code.  §  10818 
(R.    S.    §0173),    will    be    set    aside 


where  the  statement  of  the  execu- 
tor does  not  show  all  the  assets 
and  indebtedness  of  his  estate,  and 
especially  where  it  does  not  show 
that  the  personal  property  is  in- 
sufficient  to  pay  the  debts  thereof." 
Tn  re  Estate  of  DeSerissy.  8  X.  P. 
094. 

1 1  In  re  Estate  of  DeSerissy,  8  N. 
P.  094. 


§  336  MERWINE   ON    REAL    ACTIONS.  404 

be  paid  over  to  the  executor  or  administrator  out  of  the  pro- 
ceeds of  the  sale  of  the  premises  if  the  same  shall  thereafter 
be  sold,  or  have  already  been  sold;  provided  that  nothing  in 
this  section  of  the  statute  shall  be  so  construed  as  to  prohibit 
any  executor  or  administrator  from  proceeding  to  sell  land 
belonging  to  such  estate  to  pay  any  debts,  when  the  same  has 
been  sold  on  partition  or  otherwise,  or  the  proceeds  of  said 
sale  fully  distributed.12 

Where  an  administrator  has  made  full  settlement  and  a 
judgment  is  afterward  taken  against  the  estate,  in  such  case, 
for  the  payment  of  the  judgment,  the  administrator  is  entitled 
to  an  order  for  the  sale  of  so  much  of  the  real  estate  of  which 
the  intestate  died  seized,  although  such  real  estate  may  have 
been  partitioned  among  the  heirs  of  the  intestate  and  by 
them    sold    and    conveyed,   wholly   or   in    part,    to    purchasers 

thereof.13 

It  is  to  be  observed  that  none  of  the  decisions  nor  these 
statutes  authorizing  the  funds  of  a  sale  of  real  estate  in  parti- 
tion to  go  to  the  personal  representatives  to  pay  decedents, 
will  stand  in  the  way  of  such  administrator  who  is  a  party 
defendant  to  a  suit  in  partition  from  filing  his  answer  and 
cross-petition  in  such  case,  and  having  an  order  made  there- 
under that  he  be  paiJ  out  of  the  sale  a  sum  sufficient  for  the 
payment  of  the  debts  of  the  deceased.14 

Sec.  336.     Partition  can  not  be  had  within  a  year  from  death 
of  decedent,  when. 

It  is  to  be  observed,  as  shown  above,  that  where  title  to 
the  estate  sought  to  be  partitioned  came  to  such  person  by 
descent  or  devise,  upon  the  death  of  an  inhabitant  of  this  State, 
a  part  it  inn  thereof  will  not  be  ordered  by  the  court  within  one 
y*-;w  from  the  date  of  the  death  of  such  inhabitant,  unless  the 
petition  gets  forth,  and  it  is  proved  that  all  of  the  debts  and 
claims  against  the  estate  of  such  decedent  have  been  paid,  or 

'-(icn'l     Code,     S  10819      (R.     S.  ticc,  to  third  persons  now  claiming 

?  6174).     Set    Form  No.  :is(.>  for  Mo-  title  in  or  through  them,  makes  no 

tion;   also   Form   No.   290  for  Order,  difference."     See   also   In    re    Estate 

•  Foran    v.    Robinson,    17    0.    S.  of  Cavagna,  S  X.   P.  557. 
243.     "The  fad   thai   tl„.  real  estate  "  Lafferty  v.  Shinn,  38  O.  S.  46; 

of  plaintiffs  intestate  ha-  Kern  par-  but    s*>e    Rowekamp    v.    Meyer,    10 

titioned    among    hi-    heirs,    and    by  Rec.  otiS. 
them  conveyed,  with  or  without  no- 


405 


SALE    OF    REAL    ESTATE    IN    PARTITION. 


§  336 


secured  to  be  paid,  or  that  the  personal  property  of  the  de- 
ceased is  sufficient  to  pay  the  same.1"' 

Under  the  statute,  a  petition  for  partition  will  not  lie  within 
one  year  from  the  death  of  the  ancestor  from  whom  the  estate 
was  derived,  unless  it  is  averred  and  proved,  (1)  that  there 
is  sufficient  personal  property  to  pay  the  debts  of  such  an- 
cestor's estate,  (2)  that  the  debts  are  paid,  or  (3)  that  the 
debts  are  secured  as  provided  by  the  statute  which  recites 
that  an  order  for  the  sale  of  real  estate  shall  not  be  granted, 
if  any  of  the  persons  interested  in  the  estate  shall  give  bond 
to  the  executor  or  administrator  in  a  sum  with  sureties  to 
be  approved  of  by  the  court,  with  the  condition  to  pay  all 
the  debts  mentioned  in  the  petition  that  shall  eventually  be 
found  due  from  the  estate,  with  the  charges  of  administering 
the  same  and  the  allowance  in  money  to  the  widow,  so  far 
as  the  personal  estate  of  the  deceased  shall  be  insufficient 
therefor.16 

It  was  said  by  the  court  in  construing  this  statute,  that 
the  time  within  which  a  petition  in  partition,  after  the  death 
of  the  ancestor,  might  be  filed,  was  not  limited;  that  the  peti- 
tion could  be  filed  at  any  time,  and  that  the  decree  in  parti- 
tion could  not  be  entered  until  the  expiration  of  the  year.17 

In  this  connection  it  may  be  said  that  a  claim  against  a 
decedent  can  not  be  paid  out  of  the  proceeds  of  a  partition 
suit  of  his  estate,  but  such  claim  must  be  presented  to  the  ad- 
ministrator or  executor  in  the  usual  way.18 

And  a  widow,  who  has  a  dower  interest  in  the  real  estate 
of  her  deceased  husband,  and  who  in  connection  with  one  of 
the  heirs  of  the  estate,   gives  bond  to  prevent  a  sale   of  the 


isGen'l  Code,  §12028  (R.  S. 
§  575 ( » i .  Prior  to  the  amendment 
of  this  statute,  March  20,  1891,  an 
heir  at  law  could  immediately  on 
the  death  of  the  ancestor,  commence 
an  action  to  partition  the  real  es- 
tate, whether  the  ancestor  owed 
debts  or  not.  Smith  v.  Montag,  32 
W.  L.  B.  153.  The  limitation  witli 
reference  to  proceedings  in  parti- 
tion found  in  Gen'l  Code,  §  12028 
(R.  S.  §5756)  refers  to  the  time 
of  the  entering  of  the  decree,  and 
not  to  the  time  of  the  filing  of  the 
petition. 


is  Smith  v.  Montag.  32  W.  L.  B, 
183;  Swihart  v.  Swihart.  7  C.  C. 
338. 

it  Fryman  v.  Fryman,  9  C.  C.  95 ; 
but  contm,  Swihart  v.  Swihart,  7 
C.  C.  338;  Smith  v.  Montag.  32  W. 
L.  B.  153.  Where  by  a  will  it  is 
provided  that  there  should  be  no 
partition  of  the  estate  until  ten 
years  after  the  testator's  death,  it 
has  been  held  that  such  provision  is 
valid.  In  re  Reynolds'  Will.  ?  N. 
P.  626. 

is  Weiss  v.  Geddes,  Dayton,  31. 


§§337,338  MERWINE    ON    REAL    ACTIONS.  40G 

real  estate  to  pay  decedent's  debts,  and  has  paid  such  debts, 
is  not  a  volunteer,  but  is  entitled  to  subrogation,  and  in  a 
proceeding  in  partition  among  the  heirs  must  be  reimbursed 
from  the  fund  arising  from  a  sale  of  the  property  in  such 
partition  proceeding.10 

Sec.  337.     Advancements — Hotchpot  in  partition. 

Upon  the  subject  of  advancements  in  partition  an  eminent 
text  writer  has  said:  "In  effecting  a  distribution  of  the 
estate  among  the  heirs,  if  any  one  of  the  heirs  receive  a 
part  of  the  ancestor's  estate  during  his  lifetime,  it  is 
required  that  the  same  be  considered  as  a  part  of  the 
estate  of  the  deceased,  and  be  deducted  from  the  share 
surh  heir  was  entitled  to  under  the  law  of  descent.  In 
determining  the  share  of  each,  the  property  so  advanced  is 
added  to  the  rest  of  the  estate,  and  the  division  is  then  made 
by  dividing  the  aggregate  amount  equally  among  the  heirs, 
the  amount  advanced  being  treated  as  a  part  of  the  share  of 
the  heir  to  whom  it  was  given.  In  the  curious  etymology 
of  the  common  law,  this  doctrine  wras  called  'hotchpot.'  The 
doctrine  is  now  more  commonly  understood  under  the  term 
advancement.'*  *     *     A  single   gift   without    proof 

of  such  intention,  will  be  considered  an  absolute  gift,  and 
can  not  affect  the  donee's  right  to  an  equal  share  in  the  de- 
ceased 's   estate."  -" 

Sec.  338.     Advancements  by  an  intestate  to  be  considered  a 
part  of  the  estate. 

1 !'  any  estate,  real  or  personal,  has  been  given   by  any  in- 
testate in  his  lifetime  as  an  advancement  to  any  child  or  chil- 

i»  Core}    \.    Hayes,    \'-'<   C.   C.    185.  widow,    who,    being    interested    and 

"The  administrator,  the  debts  being  liable,    furnishes    the    administrator 

otherwise  unprovided   for  under  the  the    wherewithal    to    pay,    to    conn: 

provisions    of    Gen'l    Code.    5  10818  into    court    in    a    similar    way    and 

R.  S.   &  6173),   mighl    come   into  a  be  reimbursed   and    made  whole  for 

partition    proceeding    and    have    an  her  outlay."     Ihnl. 

order  of  the  court    requiring  a   suf-  2<>Tiedeman     on     Real     Property, 

(icienl    amount    of    the    proceeds    of  §  (>7'2.    citing    Chailsey    v.    Chadsey, 

a    Bale   in    partition   paid   to  him  1  i  "2ii    III.    App.    4n!);    in    re    Roberts' 

discharge  the  debts  of  decedent;  and  Estate,      111      \.     Y.     372;      Noel's 

it   does  not   seem  to  us  t  i  he  at  all  Adm'r      v.     Noel's     Adm'r      ( Va. ) , 

a   violation   of   either   the   spirit   or  '.>      S.      E.      Rep.      ~>x+:      Ritch     v. 

letter    of     that    law     to    allow     the  Hawxhurst,    11+    X.    Y.    512;    In   re 


407 


SALE  OF  REAL  ESTATE  IN  PARTITION. 


5  339 


dren  of  such  intestate  or  their  descendants,  it  will  be  con- 
sidered and  held  to  be  a  part  of  the  estate  of  the  intestate, 
so  far  as  it  regards  the  division  and  distribution  thereof 
among  his  or  her  children  or  their  descendants,  and  will  be 
taken  by  such  child  or  children  or  their  descendants  toward 
his  or  her  share  of  the  estate  of  the  intestate.-1 

Where  the  petition  in  partition  charges  that  a  certain  sum 
of  money  was  advanced  by  a  decedent  to  a  daughter,  it  will 
be  presumed  that  it  was  advanced  in  personalty  and  not  in 
real  estate.  In  such  ease  if  it  be  claimed  that  decedent  made 
the  advancement  to  the  husband  of  decedent's  daughter,  it 
is  necessary  that  the  petition  charge,  in  order  to  have  the  ad- 
vancement charged  against  her.  that  she  knew  of  the  advance- 
ment to  her  husband  and  of  the  intention  of  the  gift  to 
her.  and  that  she  acquiesced  therein.-2 

The  allegations  of  such  petition  need  not  aver  the  time  when 
such  advancement  was  made.23 

Sec.  339.     When  the  advancement  is  greater  or  less  than  the 
heirs'  share. 

If  the  amount  of  such  advancement  equals  or  exceeds  the 
share  of  the  heirs  to  whom  such  advancement  has  been  made, 
lie  or  she  must  be  excluded  from  any  further  portion  in  the 
division  or  distribution  of  the  estate,  but  shall  not  be  required 
to  refund  any  part  of  such  advancements;  and  if  the  amount 
so  advanced  is  less  than  his  or  her  full  share,  he  or  she  shall 
be  entitled  to  as  much  more  as  will  give  him  or  her  full  share 
of  the  estate  of  the  intestate.-4 


Robert,  4  Dem.  185:  Kintz  v.  Fri- 
day. 4  Dem.  540;  White  v.  Moore. 
23  S.  C.  456;  Hill  v.  Bloom,  41  X. 
.1.  Eq.  270:  Harper  v.  Harper,  92 
X.  C.  300;  Wilson  v.  Kelly.  21  S. 
i  .  535;  Simpson  v.  Simpson,  114 
111.  003;  Long  v.  Long,  10  111.  383; 
Met  lintock's  Appeal.  58  Mich.  152: 
Catoe  v.  Catoe  (S.  C.  1890),  10  S. 
F.  1078;  Sadler  v.  Huffhines  (Ky. 
1890),  12  S.  W.  715:  Smith  v.. 
Brown.  66  Texas.  543;  1  S.  W. 
573;  Lon<r  v.  Long.  30  111.  App.  559. 

2i  Gen'l      Code.      §  85S5      (R.      S. 
§4169i. 

zzBoyer   v.    Boyer,    7   X.    P.    153. 


"A  gift  to  a  son-in-law.  intended 
by  the  ancestor  to  be  charged  as  an 
advancement  against  his  daughter, 
and  not  subsequently  converted  by 
him  into  a  gift  absolute,  will  be  -  > 
charged  against  her  in  the  distril  u- 
tion  of  hi<  intestate  property,  if  she, 
knowing  the  fact  and  intention  of 
the  gift,  shall  have  acquiesced 
therein.  Admr.  v.  Executor.  22  ' ). 
S.    436. 

23  Courtier  v.  Courtier.  7  X.  P. 
154. 

24  Gen'l  Code.  §  8586  i  R.  S. 
§4170).  <^,.  alSo  Moore  v.  Free- 
man, 50   O.   S.   592. 


§  §  340,  341  MEEWINB    OX    REAL    ACTIONS.  408 

Sec.  340.     When  the  advancement  is  wholly  real  or  personal 

estate. 

If  any  such  advancement  is  made  in  real  estate,  the  value 

thereof  must  be  considered  and  taken  as  a  part   of  the  real 

state  to  be  divided,  and  if  in  money  or  other  personal  estate, 

it   shall  be   considered  and  taken  as  a  part   of  the   personal 

tte  to  be  distributed;  and  if,  in  either  case,  it  exceeds  the 

share  of  the  real  or  personal  estate  that  would  have  come  to 

the   heir  to   whom  such   advancement   had   been   made,  he   or 

she  will  not  be  required  to  refund  any  part  of  it.  but  shall 

receive   so  much  less   out   of  the   other  part   of   the   estate  of 

the  intestate,  as  will  make  his  or  her  whole   share   equal,  as 

near  as  can  be  estimated,  to  that  of  either  of  the  other  heirs 

who  are  in  the  same  degree  of  consanguinity  with  him  or  her.-5 

Sec.  341.     When  value  of  advancement  expressed  in  a  deed. 

If  the  value  of  the  estate,  real  or  personal,  so  advanced,  is 
expressed  in  a  deed  of  conveyance,  or  in  the  ciiarge  thereof 
made  by  the  intestate,  or  in  the  receipt  in  writing  given  by 
the  person  receiving  such  advancement,  it  shall  be  considered 
and  taken  to  be  of  that  value  in  the  division  and  distribution 
of  the  estate,  otherwise  it  shall  be  estimated  at  its  value 
when  advanced.26 

The  importance  of  the  foregoing  provisions,  when  applied 
to  a  proceeding  in  partition,  is  seen  at  once.  In  drafting  a 
petition  for  partition  among  the  heirs  of  an  estate  when  some 
of  the  heirs  have  received  advancements  in  real  estate  or 
in  personalty,  the  pleader  must  keep  in  mind  the  various  statu- 
tory requirements  above.  This  is  seen  in  the  form  for  an 
equitable  partition  hereinafter  set  forth.27 

Want  of  space  forbids  a  further  discussion  of  this  most 
interesting  subject.  However,  below,  in  the  notes,  will  be 
found  the  decisions  of  the  various  courts  in  this  State  con- 
st ruing  the   statute  and  determining  the  rules  of  law  as  to 

advancements.88 

| ..„•]      (.„!...  5  8587      (R.     S.           28  Father   may    direct    conveyance 

71).  to   a  child  and  the  law   will   regard 

I  ••  • 'i      'ode,  §8588      (R.     8.      the  same  as  an  advancement.   Frem- 

1 4172    .  per   v.   Barton,  8   O.  4 18:    Creed  v. 

—    Fi Tin    No.    270    for    form       Lancaster    Bank,    1    0.    S.    1;    Van 

for    Petition    in  Equitable    Parti-       Zant   v.  Davies,  G  O.  S.  52.     As  to 

ti,,n.  gifts   to   sons-in-law,   see   Needles  v. 


409 


SALE    OP    REAL    ESTATE    IN    PARTITION. 


§342 


Sec.  342.     Judgments    in    partition    can    not    be    collaterally- 
assailed. 

The  proceedings  and  judgments  in  all  partition  proceedings, 
like  judgments  in  other  actions,  bind  the  parties  and  privies 
thereto,  while  unreversed,  however  erroneously  the  proceed- 
ings may  have  been  conducted,  and  such  proceedings  and  judg- 
ments can  not  be  attacked  collaterallv.'-'9 


Needles,  7  0.  S.  432.  Advancement 
.statute  not  abrogated  by  partial 
disposition  of  estate  by  will.  Dit- 
low  v.  Cluney,  22  0.  S.  436;  Bam 
v.  Wick,  14  0.  S.  507;  children  of 
a  deceased  heir  charged  with  ad- 
vancement, when.  Parsons  v.  Par- 
sons, 52  0.  S.  470.  Property  given 
to  a  child  for  support  and  educa- 
tion not  an  advancement.  Walkers 
Am.  Law  (9th  Ed.),  400.  Effect 
of  intention  in  gift  of  personalty 
to  a  child.  Fels  v.  Fels,  1  C.  C. 
420.  As  to  effect  of  intention,  see 
also  Stichtentoth  v.  Toph,  23  W.  L. 
B.  12(5.  Presumption  as  to  ad- 
vancement made  prior  to  execution 
of  will.  Wright  v.  Merchant,  5  W. 
L.  M.  105.  Advancement  can  not 
be  made  by  parol.  Williams  v. 
Mears,  2  Disney,  614;  see  also 
Story's  Equity  Jur.  §  706a,  703; 
Halloway  v.  Headdington,  8  Sim. 
324:  Jeffries  v.  Jeffries,  1  Craig  & 
Phelps,  138;  Callaghan  v.  Calla- 
ghan,  8  CI.  &  Finn,  374.  Time 
when  advancement  given  imma- 
terial and  need  not  be  averred. 
Couster  v.  Couster,  7  X.  P.  154.  By 
Gen'l  Code,  §8587  ( R.  S.  §  4171*) 
advancement  is  taken  out  of 
kind  of  property  in  which  gift 
was  made.  Reeves  v.  Hunter, 
62  O.  S.  619.  Formerly  the  stat- 
ute provided  for  advancements  in 
realty  only.  Putman  v.  Putman, 
180,  *347:  Myers  v.  Warner.  18  O. 
519;  Miller  v.  Wilson,  15  0.  108. 
As  to  construction  of  receipt  for 
gift,  see  Overholser  v.  Wright,  17 
0.  S.  157;  see  also  Stump  v. 
Stump,  26  O.  S.  169.  Property 
conveyed  by  father  to  son  as  an 
advancement    may    be    reached    by 


creditors.  Swihart  v.  Shoum,  24  0. 
S.  432.  For  discussion  of  advance- 
ments in  connection  with  construc- 
tion of  wills,  see  Stableton  v.  El- 
lis, 21  O.  S.  527;  Hosmer  v.  Stur- 
gis,  31  O.  S.  657;  and  as  to  deeds, 
see  Thompson  v.  Thompson,  18  O. 
S.  73.  When  administrator  who  is 
compelled  to  pay  distributive 
share  will  be  subrogated  as  to  ad- 
vancement, see  Staynor  v.  Bower, 
42  O.  S.  314.  For  construction  of 
advancements  and  adjustment  of 
same  under  will,  see  Stableton  v. 
Elison,  21  0.  S.  528. 

29  Dabneg  v.  Manning.  3  O.  321 ; 
and  in  Lessee,  etc.,  v„  Rehire,  6  0. 
255,  it  was  held  "that  in  the  case 
of  an  order  for  sale  of  real  estate, 
on  petition  for  partition,  under  the 
act  of  1810,  the  proceeding  being  in 
rem  before  a  court  of  competent 
jurisdiction,  it  must  be  presumed 
that  the  court  made  the  order  on 
a  state  of  facts  being  proved  that 
gave  jurisdiction  and  authorized 
the  exercise  of  it.''  And  judg- 
ments in  partition  can  not  be  col- 
laterally attacked.  Smith  v. 
Pratt,  *13  O.  551.  The  regularity 
of  proceedings  in  partition  can  not 
be  inquired  into  collaterally.  Wil- 
son v.  Bull,  10  P.  251;  see  also 
Lessee,  etc.,  v.  Dugan,  8  O.  87,  in 
which  it  was  said:  "If  error  inter- 
vened, certiorari  was  the  proper 
remedy."  Bohart  v.  Atkinson,  14 
O.  228;  Rogers  v.  Tucker,  7  0.  S. 
417;  and  as  to  what  is  not  a  col- 
lateral attack  on  proceedings  in 
partition,  see  Main  v.  Streng,  13 
0.  D.  X.  P.  446;  see  also  on  the 
subject  of  collateral  attack.  Lan- 
don  v.   Payne,   41    0.   S.   303;    Eng- 


§343 


MERWINE    ON    REAL    ACTIONS. 


ilO 


And  it  will  generally  be  presumed  that  the  court  in  enter- 
ing its  judgments  in  partition  did  not  procede  without  first 
taking  every  step  required  to  give  it  jurisdiction.'10 

It  has  been  held  that  errors  in  the  proceedings  in  a  parti- 
tion case  can  not  be  subject  of  collateral  attack  by  another 
proceeding  to  set  aside  the  partition,  though  the  purchaser 
was   one   of  the   parties.31 

However,  in  a  proper  proceeding  wherein  fraud  is  alleged, 
relief  will  be  granted,  as  for  instance,  where  adult  heirs  obtain 
a  decree  upon  insufficient  evidence  against  their  infant  co- 
heirs of  tender  years,  for  a  large  portion  of  the  estate,  as 
having  been  purchased  from  an  ancestor,  but  which  was  in 
fact  given  by  way  of  advancement;  find  also  obtain  a  decree 
for  partition  of  the  residue  of  the  estate  and  the  proceedings 
are  managed  solely  by  the  adult  heirs — no  defense  being 
made  for  the  infants  and  no  day  given  them  to  show  cause 
against  the  decree — the  partition  will  be  set  aside  and  a  new 
partition   ordered.3'2 

Sec.  343.     Lien    against   co-tenant   attaches   to   share   set   off 
to  him  in  severalty  by  partition. 

Our  courts  have  invariably  held  that  a  lien  on  undivided 
share  before  partition  will  follow  and  attach  to  the  share  set 
apart  to  him  by  a   voluntary  or  involuntary  partition.33 

The  court  in  announcing  this  principle  said  the  reason  for 
it  was  that  the  right  of  partition  is  an  incident  to  the  estate, 


lish  v.  Monevpenny,  P>  C.  C.  554; 
Glemser  v.  Glemser,  5  N.  P.  170. 
"Partition  of  land  held  in  common 
will  hind  the  owner  of  an  interest, 
although  other  persons  may  have 
represented  his  right  in  the  par- 
tition proceedings."  Thompson  v. 
Gotham,  9  <>.  17(t.  But  this  was 
in  a  case  begun  thirty  years  after 
the    partition. 

:;"  Freeman  on  ( !o-tenancy  and 
Partition,  §528,  bul  see  Craig  v. 
'laker.  1  Dana,  lilll  1  ;  <  '.u\  ton  V. 
Shane.  7  Dana,  108;  Smith  v. 
Moore's  Heirs,  5  Dana,  117:  New 
all  v.  Sadler,  16  Mass.  L22;  Jenk 
v.  Rowland,*  ■'!  Gray,  537 ;  Thayer 
v.  Thayer.   7    Peck,   209. 


si  Glemser    v.    Glemser,    "> 
170. 


X.    P. 


"•2  Long 

v.     Mulford, 

17     O.     S. 

484;    see 

also    Roberts 

v.    Roberts* 

in   o.  s. 

96,    wherein 

it    was    de- 

cided  that  a  judgment  against  a 
minor  in  an  action  wherein  he  did 
not  have  his  day  in  court,  may  be 
reversed  upon  petition  in  error 
tiled  by  him  within  the  statutory 
time  after  reaching  the  age  of  ma- 
jority. 

88  Cincinnati  v.  Thompson,  10  \V. 
L.  B.  226;  Jackson  v.  Pierce,  10 
Johnson,  H3;  Crosby  v.  Allyn,  5 
Grienal.  453;  Williams  College  v. 
Milhtl.  12  Mo.  398;  Thurston  v. 
Mevke,  32  Md.  571;  Williard  v. 
Williard,   56    Pa.    St.   571. 


411  SALE    OF    REAL    ESTATE    IN     PARTITION.  §  344 

and  whoever  takes  an  incumbrance  upon  the  undivided  inter- 
est of  one  takes  it  subject  to  the  right  of  others  to  hold  their 
shares  in  severalty.34 

Sec.  344.  Rights  of  a  joint  owner  who  pays  his  portion  of 
a  tax — Those  not  paying  held  liable  as  if  partition  had 
not  been  made — A  tax  on  lands  sold  at  judicial  sale  to 
be  paid  out  of  proceeds  of  sale — Part  owner  paying  tax 
on  whole  tract  shall  have  lien. 

In  all  cases  where  any  tract  of  land  may  be  owned  by  two 
or  more  persons,  as  joint  tenants,  eo-parceners,  or  tenants  in 
common,  and  one  or  more  of  the  proprietors  shall  have  paid, 
or  may  hereafter  pay  the  tax,  or  tax  and  penalty,  charged 
or  chargeable  on  his  or  their  proportion  cr  proportions  of 
such  tract,  and  one  or  more  of  the  remaining  proprietors 
shall  have  failed,  or  may  hereafter  fail  to  pay  his  or  their 
proportion  of  the  tax,  or  tax  and  penalty,  charged  or  charge- 
able on  said  land,  and  partition  of  said  land  has  or  shall  be 
made  between  them,  the  tax,  or  tax  and  penalty,  paid  as  afore- 
said, shall  be  deemed  to  have  been  paid  on  the  propor- 
tion or  proportions  of  said  tract,  set  off  to  the  proprietor 
or  proprietors  who  paid  his  or  their  proportion  of  said 
tax,  or  tax  and  penalty ;  and  the  proprietor  or  proprietors 
so  paying  the  tax,  or  tax  penalty,  as  aforesaid,  shall 
hold  the  proportion  or  proportions  of  such  tract,  set  off 
to  him  or  them  as  aforesaid,  free  from  the  residue  of 
the  tax,  or  tax  and  penalty  charged  on  said  tract  before 
partition ;  and  the  proportion  or  proportions  of  said  tract, 
set  off  to  the  proprietor  or  proprietors  who  shall  not 
have  paid  his  or  their  proportion  of  said  tax,  or  tax  and 
penalty,  shall  be  charged  with  and  held  bound  for  the  portion 
of  said  tax,  or  tax  and  penalty  remaining  unpaid,  in  the  same 
manner  as  if  said  partition  had  been  made  before  said  tax, 
or  tax  and  penalty,  had  been  assessed,  and  said  proportion 
or  proportions  of  said  tract  originally  listed  for  taxation 
in  the  name  or  names  of  said  delinquent  proprietor  or 
proprietors;  and  whenever  any  lands  so  held  by  tenants  in 
common  shall  be  sold  upon  proceedings  in  partition,  or  shall 

s*  Cincinnati,    etc.,    v.    Thompson,       ris,      13      Bush,      323;      Potter      V. 
10  W.   L.   B.  226;    Wright  v.  Vick-       Wheeler,   13  Mass.  503. 
ers.   81   Pa.   St.   122;    Hall   v.   Mor- 


§§345,346  MERWINE   ON    REAL   ACTIONS.  412 

be  taken  by  the  election  of  any  of  the  parties  to  such  proceed- 
ings, or  when  any  real  estate  shall  be  sold  at  judicial  sale,  or 
by  administrators,  executors,  guardians  or  trustees,  the  court 
shall  order  the  taxes  and  penalties,  and  the  interest  thereon 
against  such  lands,  to  be  discharged  out  of  the  proceeds  of 
such  sale  or  election;  and  any  part  owner  who  shall  pay  the 
tax  on  the  whole  tract  or  tracts  of  which  he  is  part  owner, 
shall  have  a  lien  on  the  shares  or  parts  of  the  other  part  owner 
for  the  tax  paid  in  respect  of  their  shares  or  parts  which, 
with  interest  thereon,  he  shall  be  entitled  to  receive  on  sale 
or  partition  of  such  lands,  and  the  collection  of  which,  with 
interest,  he  may  enforce  like  any  other  lien  or  charge.35 

Sec.  345.     Purchasers  may  have  partition  as  in  other  cases. 

Any  person  or  persons  claiming  any  land,  in-lot,  out-lot  or 
part  of  lot  by  virtue  of  any  sales  made  by  the  provisions  of 
an  act  for  forfeited  tax  lands,  as  tenant  in  common  with  any 
other  person  or  persons,  may  apply  for  partition  of  the  same, 
in  the  same  manner  as  now  is  or  may  be  provided  for  the 
partition  of  real  estate;  and  on  presenting  the  county  auditor's 
deed,  the  court  before  whom  application  for  partition  as 
aforesaid  is  made,  shall  set  off  to  such  person  or  persons  the 
land  claimed  in  said  deed  as  his  or  their  share,  in  the  same 
manner  as  prescribed  by  law  for  the  partition  of  estate  or 
estates  in  lands,  tenements  or  hereditaments  of  joint  tenants, 
tenants  in  common,  and  co-parceners.36 

Sec.  346.     Appeal  and  error  in  partition. 

For  a  long  time  there  was  considerable  doubt  as  to  whether 
an  action  in  partition  is  appealable.  But  it  is  now  the  law 
that  such  an  action  is  appealable  no  difference  whether  the 
facts  alleged  in  the  petition  invoke  the  equitable  jurisdiction 
of  tin-  court  or  n<»t.  the  action  being  one  in  which  the  parties 
are  not  entitled  to  a  trial  by  a  jury.  However,  it  is  the  order 
and  judgment  of  the  court  in  awarding  the  partition  that  is 
the  final  order,  and  is  appealable.  In  an  action  to  obtain 
the  partition  of  real  estate,  the  judgment  that  finds  tin-  parties 
to  be  tenants  in  common,  ascertains  and  declares  the  shares 
of  each   and    orders   the    shares   so    found   to   be    aparted   to 

MGenl     Code,     §5690      (R.     S.  3cCen'l     Codo,     §5765      (R.     S. 

364).  §2900). 


413 


SALE    OF    REAL    ESTATE    IX    PARTITION*. 


§  346 


the  several  owners,  is  the  one  that  determines  the  rights  of 
the  parties,  and  it  is  from  this  decree  that  an  appeal  in  this 
class  of  actions  may  be  taken.87 

And  whatever  the  Law  may  be  elsewhere,  it  has  finally  been 
decided  in  this  State,  not  to  allow  appeals  from  orders  of 
the  court  of  common  pleas  in  proceedings  after  judgment, 
such  as  confirmations  of,  or  setting  aside  sales  of.  real  estate 
and  the  like.  The  action  of  the  court  of  common  pleas  in 
such  cases  is  reviewable  only  by  proceedings  in  error.38 
Below  will  be  found  the  cases  on  this  subject.39 
"When  from  the  whole  record  it  appears  conclusively  that 
the  proper  judgment  was  rendered,  a  proceeding  in  partition 
will  not  be  reversed  on  error  even  if  the  court  mistook  the 
law  on  some  of  the  propositions  discussed  during  the  trial." 


3"  McRoberts  v.  Lockwood,  49  0. 
S.  374. 

ss  McRoberts  v.  Lockwood.  40  0. 
S.  374;  Reeves  v.  Skenett,  13  0.  S. 
574. 

39  Rush  v.  Rush,  29  0.  S.  441; 
Barger  v.  Cochrun.  15  0.  S.  460; 
Stableton  v.  Ellison,  21  0.  S.  527; 
Hinde  v.  Whiting,  31  0.  S.  531; 
Mack  v.  Bonner,  3  0.  S.  3G6;  Hoy 
v.  Hites,  11  0.  254;  Linton  v.  Lay- 
cock,    33     0.    S.     128;     English    v. 


Moneypenny.  G  C.  C.  554;  Corwine 
v.  Mace.  36  0.  S.  125:  Hinde  v. 
Whiting.  31  0.  S.  53:  Stone  v.  Dos 
ter,  7  C.  C.  8;  Swinhart  v.  Swin- 
hart.  7  C.  C.  338;  Elstner  v.  Fill- 
er, 12  C.  C.  517:  Kleaver  v.  Sew- 
all,  33  W.  L.  B.  56;  Couard  v. 
Couard,  38  0.  S.  467:  Robinson  v. 
Brauff,  10  Rec.  485:  Jordan  v. 
Jordan.  8  C.  C.  431;  Wilder  v. 
Wilder.  1   C.   C.  X.  S.  8. 

40  Harmon  v.  Kelly,  19  0.  502. 


FORMS. 


PROCEDURE  IN  PARTITION. 


FORMS. 

256.     Petition   in   partition   and   to 

quiet  title. 
2,57.     The  precipe. 

258.  The    summons. 

259.  Sheriff's     return     of     service 

of   summons. 

260.  Answer    of    guardian    for    an 

infant. 

261.  Waiver   of   summons   and   en- 

try  of   appearance. 

262.  Answer    of    widow    asking    to 

be  endowed  out  of  proceeds 
of  sale. 

263.  Motion     for     appointment     of 

guardian    ad    litem. 

264.  Order  ippointing  guardian  ad 

litem. 

265.  Answer  of  guardian  ad  litem. 

266.  Decree  of  partition. 

267.  Writ  of  partition  directed  to 

the    sheriff  by  the   clerk. 

268.  The    commissioners'    report. 

269.  Sheriff's  return  of  his  proceed- 

ings under  the  writ. 

270.  Election    of    plaintiff   to   take 

the    real    estate    at    the    ap- 
praisement. 

271.  Entry    confirming    sale,    order 

<if   <\w<\  and   distribution. 

272.  Sheriff's  deed  in  partition. 

273.  Writ    of    partition    where   the 

property  cannot  !><•  divided 
and    i-    sold. 

274.  The  sheriff's  return  of  his  pro- 

ceedings under  the  writ. 

275.  I  he   commissioners'    report    of 

their  proceedings  under  the 

writ. 

276.  Order    of   Bale    in    partition — 

Legal    ied  ice  —  Publication 
— Sheriff's  return. 


FORMS. 

277.  Petition   for   partition — When 

advancements  have  been 
made. 

278.  Petition    in    partition — When 

there  is  an  accounting  for 
rents  and   profits. 

279.  Petition    for    equitable    parti- 

tion when  there  have  been 
advancements. 

280.  Petition  for  partition  by  guar- 

dian. 

281.  The  answer  in  partition. 

282.  Cross-petition      of      defendant 

setting  up  mortgage  claim 
on  real  estate  sought  to  be 
partitioned. 

283.  The  order  for   publication  for 

unknown  heirs  or  devisees. 

284.  Legal      notice      to      unknown 

heirs. 

285.  Legal  notice.     Sale  of  real  es- 

tate in  partition  by  the 
sheriff. 

286.  Form  of  certificate  to  probate 

court. 

287.  Journal   entry  allowing  above 

application. 

288.  Certificate  under  previous  or- 

der. 

289.  Motion  by  administrator  ask- 

ing for  a  fund  from  the 
estate  to  pay  debts  of  de- 
cedent. 

290.  Entry    sustaining    above    mo- 

t  ion. 

291.  Proof  of  publication  in  parti- 

tion  proceedings. 

292.  Legal     notice    and     service    by 

publication  i*i  partition 
proceedings. 

414 


415  POEMS. 

FORMS.  FOBMS. 

293.  The    affidavil     for    service    by       295.     Writ  of  dower  when  the  same 

publication      in      partition  can     not     be     assigned     l>y 

proceedings.  metes     and     bounds,      and 

294.  Report    of    commissioners    as-  there    is  an   assignment   of 

signing  dower  by  metes  and  rents   and    profits, 

bounds,  and  awarding  par- 
tition by  metes  and  bounds. 

No.  256.     Petition  in  partition  and  to  quiet  title. 

Court  of  Common  Pleas,  County,  Ohio. 

E.  S.  G., 

Plaintiff, 

vs.  No-  • 

M.  D.  B.,  a  minor,  H.  B.,  a  minor, 
H.  R.  W.,  as  Guardian  of  the  Estates 
of  M.  D.  B.  and  H.  B.;  K.  L.  B.,  E.  L. 
B.,  T.  E.,  T.  R.  and  F.  H.,  as  Trustees 
and  Executors  under  the  Last  Will 
and  Testament,  Trust  Disposition  and 
Settlement  of  H.  B.  R.,  deceased,  R.  D. 
J.  M.  A.,  C.  W.  B.,  F.  W.,  C.  W., 
and  I.  W., 

Defendants. 

Petition. 

The   plaintiff,   by  way   of  petition   for  partition,   represents   to  the 
court    that   she  has  a   legal   right  to   and   is   seized    in   fee  simple  of 

the  undivided  part  of  the  following  described  real  estate,  situated 

in    the    State    of    Ohio,    in    the    County    of    ,    to-wit:        (Here 

describe   real   estate ) . 

Plaintiff    further   says   that   she   derived   title   to   said   premises   by 
virtue  of  a  certain  conveyance,   made,  executed  and   delivered   to   her 

by   one    W.    W.    F.,    dated   ,    19 ,    and    of    record    in    D.    B. 

-1 t  page  in  the  office  of  the  recorder  of County,  Ohio; 

that' on  the  day  of  ,   19 ,  the  -  Company 

conveyed  said  above  described  real  estate  by  deed  duly  executed  and 
delivered  to  W.  W.  B.  and   said   W.   W.  F.;    that  said  last  mentioned 

deed  is  of  record  in  D.  B.  page  in  the  office  of  the  recorder 

of  said  County;    that   at   the   time  of  the   execution   of  said 

last  mentioned  deed,  the  following  persons,  to-wit:  W.  W.  B.,  H.  L. 
B.,  H.  B.,  who  intermarried  with  one  T.  R..  L.  T.  B.  and  F.  B., 
who  intermarried  with  one  R.   D.  J.  M.   A.,  all  children  of  W.  C.  B., 

deceased,   furnished   % in   money   of   the   consideration   paid   for 

said  real  estate  thereby  conveyed;  that  for  convenience  at  the  time, 
the  title  to  said  real  estate  was  taken  in  the  name  of  W.  W.  B.. 
and  W    W    F     said   W.  W.   B.  being  the  owner  in   fee  simple  of  the 

undivided    Part    of    said    real    estate    in    trust    for    himself,    said 

H  L  B.,  said  H.  B.  R..  said  L,  T.  B.  and  said  F.  B.  M.  A.  being 
brothers   and    sisters,    and    the    children    of    said    W.    B.    C,    and    the 


MERWINE   ON    REAL    ACTIONS.  416 

said  W.  "W.  F.    being  the  owner  in  fee  simple    of  the  undivided ■ 

part  thereof,  in  trust  for  said  plaintiff,  E.  S.  G.;  that  thereafter,  as 
above  mentioned,  said  W.  W.  F.  conveyed  to  said  E.  S.  G.,  the 
undivided  part  of  said  premises  in  fee  simple. 

Plaintiff  further  says  that  on  the  day  of  ,  19 , 

said  W.  W.  B.  died  intestate,  survived  by  his  widow,  K.  L.  B.,  and 
by  his  two  daughters,  M.  D.  B.  and  H.  B.,  minors  of  the  ages  of 
14  and  12  years,  respectively,  as  his  sole  heirs  at  law  and  legal 
representatives,  and  that  all  the  debts  of  said  W.  W.  B.  have  been 
fully   paid. 

On  the  day  of  -,  19 ,  said  H.  L.  B.  died  in- 
testate  and   without   issue    in   the    of   survived   by 

his  widow  E.  L.  B.  All  the  debts  of  said  W.  W.  B.  have  been 
fully  paid. 

On    the   day    of   ,    19 ,    said    H.    B.,    who    had 

intermarried    with    one    T.    R.,    died    testate    and    without    issue,    in 

the  of  ,  survived  by  her  said  husband  T.  R.     The 

last  will  and  testament,  trust  disposition  and  settlement  of  H.  B. 
R.,  deceased,  was  duly  and  properly  probated  and  recorded  according 

to  the  laws  of  and   a  duly  certified   copy   thereof,   together 

with  duly  authenticated  costs  of  proceedings  necessary  to  prove  said 

instrument  according  to  the   laws  of  ,  were  on  the  

day   of  — ■ ,   19 ,    regularly   and    duly    admitted    to    record   by 

the   Probate   Court    of   the   County   of   ,    State    of    Ohio,   and 

are   of  record   in   Will   Record  ,   page  . 

Plaintiff  avers  that  by  said  last  will  and  testament,  trust  dis- 
position and  settlement,  said  H.  B.  R.,  deceased,  did  dispose  and 
make  over  to  said  T.  R.  and  F.  H.  and  to  the  survivor  and  acceptor  of 
them,  as  trustees  and  trustee  all  and  sundry  the  whole  means  and  estate, 
heritable  and  movable,  real  and  personal,  of  every  kind  and  descrip- 
tion, and  wheresoever  situated,  that  shall  belong  to  said  testatrix 
at  the  time  of  her  decease,  for  the  uses  and  purposes  mentioned  in 
said  instrument;  that  said  trustees  accepted  said  trust,  properly 
qualified,  and  are  now  acting  as  such  trustees,  and,  as  such,  are 
entitled  to  the  interest  of  the  said  H.  B.  R.,  deceased,  in  said  premises 
hereinbefore  described. 

Plaintiff    further    alleges    that    on    the   day    of    , 

19 ,    said    L.    T.    B.,    died,    testate,    without   issue,    and    unmarried; 

that  his   last  will   and   testament   was    duly   admitted   to   probate   and 

recorded   in   the  municipal   court  of  the  City    of  ,   County   of 

,    and    State    of    ,    being    his    residence    at    the    time 

of  his   decease;    that  a   copy   of  said   will,   duly  authenticated  by   the 

municipal  court  of  the  City  of  ,  State  of  ,  was,   on 

the    day    of    ,    19 ,    admitted    to    record    by    the 

Probate    Court    of    County,    Ohio,    and    is    recorded    in    Will 

Record,  ,  page  ;   that  all  his  debts,  together  with  the  legacies 

due  by  the  terms  of  his  said  will,  have  been  fully  paid;  that  by  his 
said  last  will  and  testament,  said  testator  provided  that  after  the 
payment  of  the  debts  and  legacies,  all  the  rest,  residue  and  remainder 


417  FORMS. 

of  his  estate,  of  which  his  interest  in  the  real  estate  above  described 
was  a  part,  should  vest  in  H.  R.  W.,  his  heirs  and  assigns  forever, 
in  trust  for  the  sisters  of  said  L.  T.  B.,  to-wit:  H.  B.  R.  and  F.  B. 
M.  A.  or  the  survivor  of  them,  and  in  the  event  of  the  death  of 
both  sisters,  then  to  the  children  of  said  sisters  living,  or  the  issue 
of  any  deceased  child,  and  that  in  the  event  said  H.  B.  R.  and 
F.  B.  M.  A.  should  decease  without  issue  living,  then  said  H.  R.  W., 
as   said   trustee  should   pay  over,  transfer  and  convey   said   estate   so 

held  by  him,  to  the  following  persons,  to-wit:   to  C.  W.  B.  of  

a   share;    to   F.   W.,   C.    W.,   and    I.   W.,   all   of  ,   each   a 

share,  and  that  said  H.  B.  R.  and  F.  B.  M.  A.  have  both  deceased 

without   issue. 

Plaintiff  further  says  that  on  the  day  of  ,  19- 


said  F.  B.,  who  had  on  the  day  of  ,  18 ,  inter- 
married  with  one  R.  D.   J.   M.  A.,   died   in   the  of  , 

testate,    without    issue,   survived    by   her   husband,   the   said    R.    D.    J. 

M.    A.,    that    prior    to   her   marriage,   to-wit:    on   the   day    of 

!_    18 ,  the  said  F.  B.  and  the  said  R.  D.  J.  M.  A.  entered 

into  an  ante-nuptial  agreement  whereby  their  mutual  property  interests 
then   held   and   that   were   to   be   acquired,    were   to   be   placed   in   the 

hands   of  F.   H.   and   G.   G.   B.    S.,   all   of  ,   and   H.   R.   W.   of 

,  and  the  survivors  of  them,  all  trustees,  that  said  ante- 
nuptial agreement  also  provided,  among  other  things,  that  in  the 
event  of  the  death  of  the  said  F.  B.  survived  by  the  said  R.  D. 
J.  M.  A.,  said  trustees  were  to  grant  and  allow  to  the  said  R.  D.  J. 
M.  A.  the  free  life  rent,  use  and  enjoyment  of  said  property  during 
his  lifetime,  and  in  the  further  event  that  if  the  said  F.  B.  should 
die  without  issue,  then  upon  the  death  of  the  said  R.  D.  J.  M.  A., 
should  he  survive  the  said  F.  B.,  said  property  should  be  paid  and 
conveyed  to  such  person  or  persons  as  said  F.  B.  by  her  last  will 
and  testament,  deed  of  settlement,  or  any  other  writing  under  her 
hand,  which  notwithstanding  her  coverture,  she  was  thereby  em- 
powered to  execute  alone,  should  direct,  appoint  or  bequeath  the  same; 
that  by  her  last  will  and  testament,  trust  disposition  and  settlement 

duly    approved    according    to    the    laws    of   ,    being    the    place 

of  her  residence  at  the  time  of  her  death,  and  of  which  last  will 
and  testament  a  duly  and  properly  authenticated  copy  of  the  pro- 
ceedings  necessary    to    prove   said    instrument   according   to   the    laws 

of   were    on    the    day    of   ,    19 ,    by   the 

Probate  Court  of  County,  Ohio,  regularly  admitted  to  record 

in    said    county   and    recorded    in   Will    Record   ,    page   ,    said 

testatrix,  F.  B.  M.  A.,  for  the  settlement  of  the  succession  of  her  means 
and  estate  did  dispose,  make  over  and  devise  and  bequeath  to  the  said 
R.  D.  J.  M.  A.  after  the  payment  of  the  debts,  sick  bed  and  funeral 
expenses,  all  the  rest,  residue  and  remainder  of  her  said  means  and 

estate  to  him  absolutely,  and  on  the  day  of  ,  19 , 

the  trustees  and  executors  under  the  last  will  and  testament  of  the 
said    F.    B.    M.    A.    by    their    deed    of    that    date,    of    record     in    the 


MERWINE   ON    REAL    ACTIONS.  418 

recorder's  office  of  County,  Ohio,  Record  of  Deeds,  vol.  , 

page  p  conveyed  the  same  to  said  R.   D.  J.  M.  A. 

Plaintiff    further   says    that   at    the    date   of   the    death   of   said   W. 

\V.  B.  he  was  seized  in  fee  simple  of  the  undivided  part  of  said 

premises   in   trust  as   aforesaid;    that  at   his   death   the   defendant   K. 
L.  B.,  as  his  widow  became  entitled  to  dower   in  the  said   undivided 

part  thereof,  and  said  H.  L.  B.,  H.  B.  R.,  L.  T.  B.  and  F.  B.  M.  A. 

each   became   entitled    in    fee   simple   to   an    undivided   part   and 

portion  in  said  premises. 

Plaintiff  further  says  that  she  has  a  legal  right  to,  and  is  seized 
in  fee  simple,  of  an  undivided  — -*-  part  of  the  real  estate  hereinabove 
described  and  of  which  partition  is  herein  sought;  that  the  following 
named  defendants  are  tenants  in  common  with  her  in  said  premises 
in  the  following  proportions,  to-wit:  the  defendants  M.  D.  B.  and 
H.  B.,  each,  as  the  only  heir  of  said  H.  L.  B.,  deceased,  have 
a   legal    right    to    and    are    seized     in    fee    simple    of    an   undivided 

part    of  said    real    estate.      The    defendants    C.    W.    B.,    F.  *W., 

C.  W.,  and  I.  W.,  each  have  a  legal  right  to  and  are  seized  in  fee  simple 

of  an  undivided  part  of  said  real  estate  as  devisees  under  the  last 

will  and  testament  of  L.  T.  B.,  deceased;  and  the  defendant  R.  D. 
J.  M.  A.  has  a  legal  right  to  and  is  seized  in  fee  simple  of  an 
undivided part  of  said  real  estate  under  and  by  virtue  of  the  pro- 
visions of  said  last  will  and  testament  of  said  F.  B.  M.  A.,  deceased. 

Plaintiff   further   says    that  the   defendants,    M.    D.    B.   and    H.    B., 
are    minors,    aged     respectively,    14    and    12    years,    living    with    their 

mother,   the   defendant   K.   L.   B.    in   the   City   of  ,   Ohio,   and 

that  the  said  H.  R.  W.  was,  on  the  day  of  ,  18 , 

by   the  Probate  Court  of  County,   Ohio,    duly  appointed   and 

qualified  as  the  guardian  of  the  estates  of  said  minors,  and  is  now 
acting  as  such  guardian,  and  as  such,  is  made  a  party  defendant 
to  this  petition. 

Plaintiff  further  says  that  the  real  estate  herein  sought  to  be 
partitioned  is  free  from  all  and  any  encumbrance  whatsoever,  except 
the  current  taxes  and  assessments. 

Wherefore,  plaintiff  prays  a  decree  confirming  the  respective 
shares  of  the  parties  in  said  real  estate  as  above  set  forth,  and  for 
a  decree  terminating  this  trust  and  quieting  the  title  to  said  premises, 
and  for  partition  of  said  real  estate  according  to  the  respective  rights 
of  the  persons  thereto,  including  the  assignment  of  the  dower  estate 
of  the  defendant  K.  L.  B.,  as  above  set  forth,  and  that  if  the  said 
real  estate  cannot  be  divided  among  said  tenants  in  common,  with- 
out manifest  injury  to  the  value  thereof,  that  the  same  may  be  sold 
and  the  proceeds  divided  among  said  parties  as  they  may  be  found 
to  be  entitled  thereto,  and  for  such  other  and  further  relief  as  is 
just,  equitable  and  proper. 


Attorneys   for  Plaintiff. 


419  FORMS. 

State  of  Ohio,  County,  ss.: 

,    being    first    duly    sworn,    says    that    he    is    one    of    the 

attorneys  for  the  plaintiff,  E.  S.  G.,  and  duly  authorized  in  the  prem- 
ises;   that   the  said   E.   S.    G.   is  absent   from   the  County   of  

and  State  of  Ohio;  and  that  she  is  a  non-resident  of  said  county 
and  State;  and  that  the  facts  stated  and  allegations  contained  in 
said  foregoing  petition  are  true,  as  he  verily  believes. 


Sworn    to    before    me    and    subscribed    in    my    presence    on    this 
day    of  ,   19 .  , 


Notary  Public,  County,  0. 

No.  257.     Precipe. 

Court  of  Common   Pleas,  —  County,  Ohio. 

(Same  caption  as  in  petition.) 

Petition. 

To  the Clerk  of  the  Common  Pleas  Court,  County, 

Ohio: 

Issue  summons  in  the  above  entitled  action  directed  to  the  sheriff 

of  County,   Ohio,    for   the   defendant,    M.    D.   B.,  a   minor    14 

years  of  age,  and  H.  B.,  a  minor  12  years  of  age.     Endorse  summons, 
"Action   for  partition  and   equitable   relief." 


Attorneys   for   Plaintiff. 

No.  258.     Summons. 

State  of  Ohio,  County,  ss.: 

To   the  Sheriff  of  said   County,  Greeting: 

You  are  commanded  to  notify  M.  D.  B.,  a  minor  14  years  of 
age,   and  H.   B.,  a   minor  12   years  of  age,  that  they  have  been   sued 

by   E.    S.    G.    in    the    Common    Pleas    Court    of   County,    and 

that    unless    they    answer    by    the    day    of    in    the 

year    of    our    Lord     19 ,    the    petition    of    said    plaintiff,    E.    S.    G. 

against  them,  filed  in  the  clerk's  office  of  said  county,  such  petition 
will  be  taken  as  true  and  judgment    rendered  accordingly. 

You  will   make  due  return  of  this  summons  on   the  day 

of   in    the   year      of   our   Lord     one    thousand   nine   hundred 

and   . 

Witness    my    hand    and    seal    of   said    court,    this    day    of 

,    in   the    year   of   our   Lord    one    thousand    nine   hundred    and 


L„  S.  Clerk  of  Court  of  Common  Pleas, 

('trinity.   Ohio. 

By ,  Deputy. 


MERWINE    ON    REAL    ACTIONS.  420 

No.  259.     Sheriff 's  return  of  service  of  summons 

State  of  Ohio,  County,  ss.: 

Received    this    writ   on    the    day    of   ,    19 ,    at 

o'clock  ii.,   and   pursuant   to   its   command,   on   the  


day  of  in  the  year  of  our  Lord  one  thousand  nine  hundred 

and  ,  I  served  the  same  by  leaving  a  true  and  duly  certified 

copy  of  this  writ,  with  all  the  endorsements  thereon,  at  the  usual 
place  of  residence  of  each  of  the  following  within  named  defendants, 
M.  D.  B.,  a  minor  14  years  of  age,  and  H.  B.,  a  minor  12  years 
of  age.  Also  on  the  same  day  I  served  the  same  by  leaving  a  true 
and  duly  certified  copy  of  this  writ  with  all  the  endorsements  thereon, 
for  each  of  the  said  minors,  with  K.  B.,  mother  of  M.  D.  B.  a  minor 
14  years  of  age,  and  H.  B.,  a  minor  12  years  of  age,  at  her  usual 
place  of  residence,  not  being  able  to  find  after  due  and  diligent  search, 
a  guardian  or  father  for  or  of  the  said  M.  D.  B.  or  H.  B.,  minors 
aforesaid,  within  my  bailiwick. 

,   Sheriff, 

By  ,  Deputy. 

No.  260.     Answer  of  guardian  for  infant  defendant. 

Court   of   Common   Pleas,   —   County,    Ohio, 

(Same  caption  as  in  petition.) 

Answer  of  Defendant,  H.   R.   W.,   as   Guardian  of  the  Estates 

of   M.    D.   B.    and   H.   D. 

Now  comes  the  defendant,  H.  R.  W.,  as  guardian  of  the  estates 
of  M.  D.  B.  and  H.  B.,  respectively,  and  for  his  answer  as  such 
guardian,  says  that  he  is  the  duly  appointed,  qualified  and  acting 
guardian  of  the  said  M.  D.  B.  and  H.  B.;  that  he  admits  the  allegation 
in  the  petition  respecting  the  several  interests  of  his  wards,  respec- 
tively, in  the  premises  described  in  the  petition,  and  of  which  parti- 
tion is  therein  sought,  and  that  as  such  guardian  he  consents  to 
the  partition  of  said  premises  according  to  the  tenor  of  said  petition, 
and   asks   the   court   to   protect   his   interest  and   the   interests   of   his 

said   wards    therein.  , 

As  Guardian  of  the  Estates  of  M.  D.  B.  and  H.  B. 

(Answer  should  be  verified). 

No.  261.     Waiver  of  summons  and  entry  of  appearance. 

Court   of   Common   Pleas, —   County    Ohio. 

(Same  caption  as  in  petition.) 

We,  the  undersigned,  defendants  in  the  above  entitled  action, 
hereby  waive  the  issuing  and  service  of  summons  upon  us  and 
voluntarily    enter    our    appearance    therein    as    such    defendants,    and 


421  FORMS 

we  hereby  consent  to  the  partition  of   the  real  estate  as  prayed  for 

in  plaintiff's  petition. 

C.  W., 
I.    W., 

H.  R.  W.,  as  Guardian 
of  the  Estates  of  M.  D.  B.  and  H.  B. 

C.  W.   B., 
F.    W., 
K.  S.  B.,  - 

E.  L.   B., 

F.  R.   and   F.   H., 

As  Trustees  and  Executors  under 
the  last  will  and  testament,  trust 
disposition  and  settlement  of  H* 
B.  R.,  deceased. 

T.  R., 

R.  D.  J.  M.  A. 


No.  262.     Answer  of  the  defendant,  K.  L.  B.,  widow. 

Court   of   Common   Pleas, County,   Ohio. 

(Same  caption  as  in  petition.) 
Answer  of  the  Defendant,  K.  L.  B.,  Widow,  Setting  up  Dowee. 

Now  comes  the  defendant  K.  L.  B.  and  for  her  answer  to  the 
petition  herein,  says  that  she  is  the  widow  of  the  said  W.  W.  B., 
deceased,  and  as  such  widow  is  entitled  to  dower,  as  mlly  set  forth 
and  described  in  said  petition,  in  the  said  undivided  part 
of  the  said  premises  described  in  the  petition,  owned  by  said 
W.  W.  B.,  deceased,  the  fee  simple  of  which  interest  descended  to, 
and  is  now  owned  by  the  minor  defendants,  M.  D.  B.  and  H.  B., 
share  and  share  alike  as  the  only  heirs  at  law  of  the  said  W.  W.  3., 
deceased,  all  of  which  facts  are  fully  set  forth  in  the  petition. 

This  answering  defendant  further  says  that  in  the  event  said 
premises  cannot  be  partitioned  and  divided  as  prayed  for  in  the  peti- 
tion, she  hereby  waives  the  assignment  of  dower  to  her  in  said  premises 
by  metes  and  bounds  and  asks  to  have  said  premises  scld  free  of 
her  said  dower,  and  to  have  paid  her  in  lieu  thereof  such  sum  of 
money  out  of  the  proceeds  of  the  sale  of  said  premises  as  the  court 
deems  a  just  and  reasonable  value  of  her  interest  therein;  and  for 
the  purpose  of  ascertaining  the  true  and  correct  value  of  her  said 
dower  interest  in  the  proceeds  realized  from  the  sale  of  said  premises, 

this   answering   defendant   avers    that   she   was   years   of   age 

on   the  day  of  ,  19 

(Answer  should  be  verified). 


MERWINE    ON    REAL    ACTIONS.  422 

No.  263.    Motion  for  appc"::tinc^t  cl  guardians  ad  litem. 

Court   of   Common    Pleas,   County,    Ohio. 

(Same  caption  as  in  petition.) 

Motion. 

Now  comes  the  plaintiff  by  H.  E.  B.  and  Q.  R.  L.,  her  attorneys, 
and  moves  the  court  for  an  order  appointing  a  guardian  ad  litem  for 
the  minor  defendants,  M.  D.  B.  and  H.  B.,  infants  aged  14  and  12 
years,  respectively,  and  represents  to  the  court  that  said  infant  de- 
fendants have  been  regularly  served  with  summons  herein.  Plaintiff 
further  suggests  W.  G.  B.  as  such  guardian  ad  litem. 

H.   E.  B.  &  Q.  R.  L., 
Attorneys   for  Plaintiff. 

No.  264.     Order  appointing  guardian  ad  litem. 

Court   of   Common    Pleas,   County     Ohio. 

(Same  caption  as  in  petition.) 

Order  Appointing    Guardian   ad   Litem. 

This  cause  coming  on  this  day  to  be  heard  upon  the  motion  of 
plaintiff  for  an  order  appointing  a  guardian  ad  litem  for  the  minor 
defendants,  M.  D.  B.  and  H.  B.,  upon  consideration  whereof  the 
court  being  fully  advised  in  the  premises  finds  that  said  motion  is 
well  taken  and  does  sustain  the  same. 

Wherefore,  it  is  ordered  by  the  court  that  W.  G.  B.  be  appointed, 
and  he  hereby  is  appointed  guardian  ad  litem  for  said  minor  defend- 
ants, M.  D.  B.  and  H.  B.  Thereupon  came  said  W.  G.  B.  and  accepted 
said  appointment. 

No.  265.    'Answer  of  guardian  ad  litem. 

Coubt   of    Common    Pleas,    —    County,    Ohio. 

(Same  caption  a^  in  petition.) 

A.NSWKR     OK     W.     G.     B.,     AS     GUABDIAN     AD     LITEM. 

.sow  comes  W.  G.  B.,  heretofore  appointed  guardian  ad  litem  herein 
for  rhe  minor  defendants  M.  D.  B.  and  H.  B.,  and  for  answer  herein 
denes  each  and  every  allegation  contained  in  said  petition,  and 
further  says  that  said  infants  are  of  tender  years  and  ignorant  of 
their  rights  herein,  wherefore  he  requests  the  court  to  protect  their 
interests  described   in  the  petition. 

\V.   G.    B., 
As  Guardian  ad  litem  for  M.  D.  B.  and  H.  B. 


423  FORMS 

No.  266.     Decree  of  partition. 

Court   of    Common    Pleas,    County,    Ohio. 

(Same  caption  as   in  petition.) 

Decree   or    Partition. 

This  cause  having  been  regularly  placed  on  the  trial  docket  of 
this  term  and  set  for  trial  this  day,  and  now  coming  on  to  ba 
heard  upon  petition,  separate  answers  of  each  of  the  following  defend- 
ants, K.  L.  B.,  H.  R.  W.,  as  guardian  of  the  estates  of  M.  D.  B.  and 
H.  B.,  the  exhibits  and  the  evidence,  and  the  court  being  fully  advised 
in  the  premises  finds  that  all  of  the  defendants  had  due  legal  notice 
of  the  pendency  and  prayer  of  the  petition,  and  are  regularly  in 
court  as  defendants  to  this  action;  that  the  defendants  M.  D.  B. 
and  H.  B.,  minors  aged  14  and  12  years  respectively,  have  been  duly 
and  regularly  served  with  summons  herein;  that  all  the  remaining 
defendants  have  waived  the  service  of  summons  upon  them  and 
entered  their  appearance  herein  and  consented  to  the  partition  of 
the  real  estate  as  prayed  for  in  plaintiff's  petition. 

The  court  further  finds  that  the  facts  and  allegations  contained 
in  said  petition  and  in  said  separate  answer  of  said  K.  L.  .B.  are 
true;  that  the  plaintiff  is  entitled  to  the  relief  therein  sought;  that 
plaintiff  and  the  defendants  hereinafter  named  are  tenants  in  common 
in  the  real  estate  described  in  said  petition;  that  the  plaintiff  E. 
G.  G.  has  a  legal  right  to  and  is  seized  in  fee  simple  of  an  undivided 
part  of  the  real  estate  described  in  said  petition;  that  the  follow- 
ing named  defendants  are  tenants  in  common  with  the  plaintiff  in  said 
premises,  in  the  following  proportions,  to-wit:  That  the  defendants 
M.  D.  B.  and  H.  B.  each  have  a  lsgal  right  to  and  are  seized  in 
fee  simple  of  an  undivided ■  part  of  said  real  estate,  subject,  how- 
ever, tc  the  dower  interest  of  their  mother,  the  defendant  K.  L.  B.,  in 
their  said  respective  parts  and  portions;  that  the  defendant  E.  L.  B.  has 

a  legal  right  to  and  is  seized  in  fee  simple  of  an  undivided  part 

of  said  real  estate,  as  the  only  heir  of  said  H.  L.  B.,  deceased; 
that  the  defendants  T.  R.  and  F.  H.  as  trustees  and  executors  under 
the  last  will  and  testament,  trust  disposition  and  settlement,  of  H. 
B.   R.,   deceased,  have   a  legal   right  to,   and   are  seized   in   fee  simple 

of  an  undivided part  of  said  real  estate;  that  the  defendants  C.  W. 

B.,    F.    W.,    C.    W.,    and    I.    W.    each    have    a    legal    right    to    and    are 

seized  in  fee  simple  of  an  undivided  part  of  said   real  estate,  as 

devisees  und?r  the  last  will  and  testament  of  L  T.  W.,  deceased, 
and   the  defendant  R.  D.  J.  M.  A.  has  a  legal    right  to  and   is  seized 

in  fee  simple  of  an  undivided  part  of  said  real  estate  under  and 

by  virtue  of  the  provisions  of  said  last  will  and  testament  of  said 
F.  B.   M.  A.,  deceased. 

The  court  further  finds  that  said  trust  heretofore  existing  with 
reference  to  the  title  of  said  real  estate,  as  fully  set  forth  and  described 
in  the  petition  should  be  terminated;  that  the  title  to  said  premises 
be  quieted  and  confirmed  in  the  persons  and  in  the  proportions  here- 


MERWINE   ON    REAL   ACTIONS.  424 

inabove  mentioned;  and  that  the  plaintiff  is  entitled  to  have  partition 
in  said  premises  made  as  prayed  for  in  her  said  petition. 

The  court  further  finds  that  the  defendant  K.  L.  B.  has  filed  her 
answer  herein,  setting  forth  that  in  case  said  premises  cannot  be 
partitioned  as  prayed  for  in  said  petition,  she  waives  the  assign- 
ment of  dower  to  her  in  said  premises  by  metes  and  bounds,  and 
asks  the  court  that  the  same  may  be  sold  free  of  dower,  and  to 
have  paid  her  in  lieu  thereof  such  sums  of  money  out  of  the  proceeds 
of  the  sale  of  said  premises  as  she  is  legally  entitled  to. 

It  is  therefore  ordered,  adjudged  and  decreed  that  partition  of 
said  premises  described  in  the  petition  be  made  in  favor  of  all  parties 
in  interest  and  that  G.  H.,  L.  D.  B.  and  F.  C.  M.,  three  judicious 
and  disinterested  freeholders  of  this  county,  and  not  of  kin  to  any 
of  the  parties  entitled  hereto,  are  hereby  appointed  commissioners 
to  make  said  partition. 

It  is  further  ordered  that  if  in  the  opinion  of  said  commissioners, 
said  premises  cannot  be  divided  by  metes  and  bounds  without  injury 
to  the  value  thereof,  no  dower  be  assigned  to  said  K.  L.  B.,  and  that 
said  premises  be  appraised  free  of  said  dower;  that  a  writ  of  parti- 
tion  issue  to  the  sheriff  of  County,  Ohio,   commanding  him 

that  by  the  oaths  of  the  commissioners  hereinabove  named,  he  cause 
to  be  set  off  and  divided  to  each  of  the  above  named  parties,  tenants 
in  common,  the  parts  and  portions  of  said  premises  to  which  they 
are  hereinabove  severally  found  entitled,  and  also  to  cause  to  be 
set  off  and  assigned  to  her  dower  of  said  defendant  K.  L.  B.,  and 
that  said  sheriff  make  due  return  of  his  proceedings  under  said  writ. 

No.   267.     Writ   of  partition   directed   to   the   sheriff   by   the 
clerk. 

Court  of  Common  Pleas,  County,  Ohio. 

(Same  caption  as  in  petition.) 

Writ  of  Partition. 

State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

Vv'e  command  you  that  without  delay  by  the  oaths  of  G.  H.,  L. 
D.  B.  and  F.  C.  M.  you  cause  to  be  set  off  and  assigned  to  K.  L.  B„ 
as  widow  of  W.  W.  B.,  deceased,  as  and  for  her  dower  estate  interest 
therein  one  full  and  equal  part  of  the  real  estate  hereinafter  de- 
scribed to  be  taken  out  of  the  part  and  portion  thereof  hereinafter 
ordered  to  be  set  off  and  assigned  to  the  defendants  M.  D.  B.  and  H.  B., 
children  of  said  W.  W.  B.,  deceased,  and  that,  in  like  manner,  by 
t!k'   oaths   of  the   same   men   you    cause   partition   to   be   made    of  the 

me    lands,    situated    in    the    City    of    ,    in    the    County    of 

—  and   in   the  State  of  Ohio,  to-wit:    (Here  follows  description 
of  real   estate). 

Said  partition  is  to  be  made  subject  to  said  dower  estate  of  said 
K.  L.  B.,  as  above  mentioned  among  the  persons  named  herein,  and 


425  FORMS. 

in  the  following  proportions,  to-wit:   to  the  plaintiff  E.  S.  G.,  the  

part  thereof;   to  the  defendant  M.  D.  B.,  the  part  thereof;   to  the 

defendant  H.  B.  the  part  thereof;   to  the  defendant  T.  R.  and  F. 

H.,    as    trustees    and    executors    under    the    last    will    and    testament, 

trust  disposition  and   settlement  of  H.  B.   R.,  deceased,  the  part 

thereof;  to  the  defendant  L.  W.,  the part  thereof;  to  the  defendant 

I.  W.,  the part  thereof;  and  to  the  defendant  R.  D.  J.  M.  A.,  the 

part  thereof. 

If,  however,  it  is  the  opinion  of  said  commissioners  that  said 
premises  cannot  be  divided  by  metes  and  bounds  without  manifest 
injury  to  the  value  thereof,  you  will  then  cause  said  commissioners 
to  appraise  said  premises  free  and  clear  of  the  dower  estate  of  the 
said  K.  L.  B. 

This    writ    issues    in    pursuance    of   an    order   lately    made    in    our 

Court  of  Common  Pleas  within  and  for  the  said  County  of  * 

in  a  certain  action  for  partition,  wherein  the  said  E.  S.  G.  is  plaintiff 
and  the  said  M.  D.  B.  and  others  are  defendants,  and  numbered 
on  the  docket  of  said  court  . 

Of  your  proceedings  in  the  premises  hereunder  you  shall  distinctly 
certify  under  your  hand  to  our  said  court  forthwith. 

Witness   my   hand  and   the    seal   of  said  Court   of  Common   Pleas 

at  the  court  house   in   ,   this  day   of  November,   A. 

D.  19 .  ,   Clerk, 

L.  S.  By  1  Deputy. 

No.  268.     Commissioner's  report. 

Court   of    Common    Pleas, County,    Ohio. 

(Same  caption  as  in  petition.) 

Commissioner's  Report. 

According  to  the  command  of  the  writ  of  partition  in  this  case 
issued  and  on  the  call  of  the  sheriff  of  said  county,  we,  the  under- 
signed commissioners,  after  being  first  duly  sworn  and  upon  actual 
view  of  the  premises,  we  are  of  opinion  that  the  said  lands  cannot 
bo    divided   without   manifest    injury,    and   we    do   estimate    the    value 

of  the  same  at  the  sum  of  dollars,   ($ ),  free  and  clear 

of  all  dower  estate  therein. 

Given  under  our  hands  this  day  of  .  A.  D.  19 . 


G.    H., 

L.    D.    B., 

F.     C.     M.. 

Commissioners. 

No.  269.     Sheriff's  return  of  his  proceedings  under  the  writ. 

Sheriff's  Return. 

As  commanded  by  the  foregoing  writ  of  partition  I  have  executed 
the   same   by   the   oaths   of   G.   H.,   L.   F.    B.   and    F.   C.    M.,   and   said 


MERWINE    ON    REAL    ACTIONS. 


426 


commissioners  being  of  the  opinion  that  said  premises  cannot  be 
divided  without  manifest  injury,  I  have  caused  the  same  to  be  ap- 
praised; all  of  which  will  appear  by  the  report  of  the  commissioners 
herewith    returned. 

Given  under  my  hand  on  this  day  of  ,  19         . 

No.  270.     Election  of  plaintiff  to  take  the  real  estate  at  the 
appraisement. 

Court  of  Common  Pleas,  County,  Ohio. 

(Same  caption  as  in   petition.) 

Election  ok  Plaintiff  to  Take    the  Real  Estate  at  the  Appraise- 
ment. 

Now  comes  the  plaintiff,  E.  S.  G.,  one  of  the  tenants  in  common 
and  a  person  interested  in  the  real  estate  described  in  the  petition 
and  hereby  elects  to  take  said  premises   described   in  the  petition  at 

the   appraised   value   thereof,   to-wit:    dollars    ($ ),   and 

asks  the  court  to  award  the  same  to  her. 

E.  S.  G. 


No.   271.     Entry  confirming   sale,   order   of  deed   and   distri- 
bution. 

Court  of  Common  Pleas.  County,  Ohio. 

(Same  caption  as  in  petition.) 

Entry   Confirming   Sale,   Order  of   Deed   and    Distribution. 

This  cause  .oming  on  this  day  to  be  heard  further  upon  return  of 
the  sheriff,  and  the  report  of  the  commissioners  heretofore  appointed 
herein,  and  on  the  motion  to  confirm  the  same,  and  it  appearing  from 
said  report  that  said  estate  could  not  be  divided  by  metes  and  bounds 
without  injury  to  the  value  thereof,  and  that  said  commissioners  have 

made  and  returned  their  appraisement  of  said  estate  at dollars 

($ )?    free    and    clear    of    all    dower    interest    therein,    and    the 

court  being  fully  advised  in  the  premises  find  said  return,  appraise- 
ment and  the  proceedings  under  said  writ  of  partition  to  be  in  all 
respects  correct,  and  in  conformity  to  law,  and  former  orders  of  this 
court,  and  does,  therefore,  approve  and  confirm  the  same. 

And  it  further  appearing  to  the  court  that  the  said  plaintiff,  E.  S.  G., 
has  elected  to  take  said  premises  at  their  appraised  value,  to-wit:  at 
dollars    ($ ). 

And  it  further  appearing  that  said  E.  S.  G.  is  one  of  the  tenants  in 
common  and  interested  in  said  premises  and  authorized  by  the  statutes 
to  so  elect,  the  court,  on  good  cause  shown,  directs  and  requires  that 
said  sum  be  paid  in  cash,  and  that  upon  said  E.  S.  G.  paying  the  same 
into  court,  the  said  premises  and  the  estate  be,  and  hereby  are,  adjudged 


427  FORMS. 

to  her,  and  the  sheriff  is  ordered  thereupon  to  make  and  execute  to  her 
a  good  and  sufficient  deed  in  fee  simple  therefor. 

And  the  court  coming  now  to  distribute  the  proceeds  of  said  estate 

and  sale,  amounting  to  the  sum  of  dollars    ($ ),   it   is 

ordered  that  out  of  said  sum   the  sheriff  pay 

First.     To ,  as  clerk  of  the  Court  of  Common  Pleas, 

County,  Ohio,  the  cost  of  this  action,  taxed  at  $ . 

Second.     To  K.  L.  B.,  the  sum  of  $ ,  being  the  full  and  just 

value  of  her  dower  interest  in  said  premises. 

Third.     To  E.  L.  B.,  the  sum  of  $ ,  being  in  full  payment  of 

her  distributive  share  of  said  premises. 

Fourth.     To  H.  R.  W.,  as  guardian  of  M.  D.  B.,  the  sum  of  $ , 

in  full  payment  of  the  distributive  share  of  said  M.  D.  B. 

Fifth.     To  H.  R.  W.,  as  guardian  of  H.  B.,  the  sum  of  $ ,  in 

full  payment  of  the  distributive  share  of  said  H.  B. 

Sixth.  To  T.  R.  and  F.  H..  as  trustees  and  executors  under  the  last 
will  and  testament,  trust  disposition  and  settlement  of  H.  B.  R.,  de- 
ceased, or  of  H.  R.  W.,  their  attorney  in  fact,  the  sum  of  $ ,  in 

full  payment  of  their  distributive  share  herein. 

Seventh.     To  C.  W.  B.,  the  sum  of  $ ,  in  full  payment  of  his 

distributive  share  herein. 

Eighth.  To  C.  W.,  the  sum  of  $ ,  in  full  payment  of  her  dis- 
tributive share  herein. 

Ninth.  To  I.  W.,  the  sum  of  $ ,  in  full  payment  of  her  dis- 
tributive  share    herein. 

Tenth.  To  R.  D.  J.  M.  A.  or  H.  R.  W.,  as  his  attorney  in  fact,  the 
sum  of  $ ,  in  full  payment  of  his  distributive  share  herein. 

Eleventh.     To  F.  W.,  the  sum  of  $ ,  in  full  payment  of  his 

distributive    share    herein. 

Twelfth.     To  E.  S.  G.,  the  sum  of  $ ,  in  full  payment  of  her 

distributive   share   herein. 

No.  272.     Sheriff's  deed  in  partition. 

To  all  Persons  to  Whom  These  Presents  Shall  Come,  Greeting: 

Whereas.  On  the  day  of  ,  A.   D.  19 ,  E.  S.  G..  as 

plaintiff,  filed  her  certain  petition,  and  then  and  there  commenced  a 

civil  action  in  the  Court  of  Common  Pleas,  County,  Ohio,  against 

M.  D.  B.  and  others,  and  numbered  on  the  docket  of  said  court  as  case 

number ,  demanding  partition  of  certain  real  estate  hereinafter 

described;    and 

Whereas,  Such  proceedings  were  had  upon  said  petition,  that  the 
commissioners  appointed  by  said  court  to  make  partition  of  said  real 
estate  made  report  that  partition  of  the  same  could  not  be  made  with- 
out manifest  injury,  and  that  the  value   thereof  was  $—  -;    and 

Whereas,  at  the  term  of  said  court,  in  said  year,   10 , 

the  said  report  of  said  commissioners  was  approved  and  confirmed  by 
said  court,  and  thereupon  came  the  said  plaintiff.  E.  S.  G.,  and  elect ed 
to  take  said  real  estate  at  the  value  fixed  by  said  commissioners,  to-wit: 


MERWINE   ON    REAL   ACTIONS. 


428 


the  sum  of  $ •    Whereupon  the  said  court  ordered  that  on  the 

payment  by  said   E.  S.  G.   of  said  sum  of   $ into  court,   said 

premises  be  adjudged  to  her,  and  further  ordered  the  sheriff  of  said 
county  to  execute  a  deed  in  fee  simple  for  the  same  to  said  E.  S.  G.. 
all  of  which  will  more  fully  appear,  reference  being  had  to  the  records 

of  said  court. 

Now    Therefore    I,  ,  sheriff  of  said  County,  Ohio, 

in  consideration  of  the  premises,  and  by  virtue  of  the  powers  in  me 
vested  by  law,  do  by  these  presents  grant,  bargain,  sell  and  convey  unto 
the  said  E.  S.  G.  and  to  her  heirs  and  assigns  forever,  the  following 
described  real  estate  so  adjudged  as  aforesaid  to  said  E.  S.  G.,  situated 

in  the  County  of ,  in  the  State  of  Ohio  and  in  ,  to-wit: 

(Here  insert  description  of  real  estate). 

To  Have  and  to  Hold  the  premises  aforesaid  unto  the  said  E.  S.  G., 
her  heirs  and  assigns  forever  as  fully  and  completely   as  I,  the  said 

sheriff  of  said  County,  Ohio,  by  virtue  of  said  order 

and  judgment  of  said  court  and  of  the  statute  made  and  provided  for 
such  cases,  might  or  should  convey  the  same. 

In  Testimony    Whereof,  I  hereunto  set  my  hand  this  day  of 

,  19 . 

Signed  and  acknowledged  by  in  the  presence  of  , 

as  sheriff  of  County,  Ohio. 


The  State  of  Ohio, County,  ss.: 

Personally  appeared  before  me,  a  notary  public   within  and  for  said 

county,  the  above  named ,  as  sheriff  of  County,  Ohio, 

the  grantor  in  the  above  deed  of  conveyance,  who  acknowledged  the 
signing  of  the  same  to  be  his  voluntary  act  and  deed  for  the  uses  and 
purposes   therein   mentioned. 

In  Witness    Whereof,  I  have  hereunto  set  my  hand  and  seal  this 

day  of  ,  A.  D.  19 . , 

Notary  Public,  County,  Ohio. 

No.  273.    Writ  of  partition  where  the  property  can  not  be 
divided  and  is  sold. 

State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

We   command   you  that   without   delay,   by   the   oaths  of  , 

and  ,  you  cause  partition  to  be  made  of  the  following 

described  premises,  situate  in  the  county  of  and  State  afore- 
said, to-wit:  (Here  describe  real  estate).  Among  the  persons  named 
herein,  and  in   the  following  portions,  to-wit: 

To    Part- 

To    part. 

To    Part- 


429  FORMS. 

To    I,art- 

To    I)ait- 

To    uart- 

And  if,  in  the  opinion  of  the  said  commissioners,  said  premises 
can  not  be  divided  by  metes  and  bounds  without  manifest  injury  to  the 
value  thereof,  you  cause  them  to  appraise  the  same,  in 
pursuance  of  an  order  lately  made  in  our  Court  of  Common  Pleas 
within  and  for  said  County  of  ,  in  a  certain  petition  for  parti- 
tion wherein  the  said  is  plaintiff,  and  the  said  are 

defendants,  and  that  your  proceedings  in  the  premises  you  distinctly 
certify,   under  your   hand,   to   our   said   court   forthwith. 

Witness  my  hand  and  seal  of  said  Court  of  Common  Pleas  at  the 
court  house  in  ,  this  day  of  ,  19 . 


Clerk. 

No.  274.     Sheriff's  return  of  his  proceedings  under  the  writ. 

As  commanded  by  the  foregoing  writ  of  partition,  I  have  executed 

the  same  by  the  oaths  of ,  and  ,  causing  said 

partition  to  be  made  of  the  premises  in  this  writ  described,  and  the 
said  commissioners  being  of  the  opinion  that  the  said  premises  can  not 
be  divided  without  manifest  injury,  I  have  caused  the  same  to  be  ap- 
praised, all  of  which  will  appear  by  the  report  of  the  commissioners 
herewith  returned. 

Given  under  my  hand  this  day  of  ,  19 • 

Sheriff. 

No.  275.     Commissioner's  report  of  their  proceedings  under 
the  writ. 

;  plaintiff,  Court  of  Common  Pleas, 

vs  County,  Ohio. 

,  Defendants.  In  Partition. 

According  to  the  command  of  the  writ  of  partition  in  this  case 
issued,  and  on  the  call  of  the  sheriff  of  said  county,  we,  the  undersigned 
commissioners,  after  being  first  duly  sworn  and  after  actual  view  of 

the  premises,   do  make   partition   to   the   said  part. 

To  the  said  -  -      To  the  said  •  -.     To  the  said  ■ 

To  the  said 


And  upon  actual  view  of  the  premises,  we  are  of  the  opinion  that 
the  said  lands  can  not  be  divided  without  manifest  injury.  And  we  do 
estimate  the  value  of  the  same  at  $ • 

Given  under  our  hands  this  day  of  ,   19         . 


Commissioners. 


MERWINE    ON    REAL    ACTIONS  430 

No.  276.     Order  of  sale  in  partition — Legal  notice — Publica- 
tion and  sheriff's  return. 

State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,   Greeting: 

In  pursuance  of  an  order  of  our  Court  of  Common  Pleas  within  and 

for  the  County  of  ,  at  the  term,  one  thousand  nine 

hundred  and  ,  in  a  certain  petition  for  partition  now  pending 

in  said  court,  wherein is  petitioner  and are  respond- 
ents, we  command  you  that,  without  delay,  you  proceed  to  sell  at  pub- 
lic auction,  the  lands  and  tenements  in  said  petition  described,  to-wit: 

(Here   describe   real   estate).     Appraised   at   $ .     Free  of   dower, 

and  that  your  proceedings  in  the  premises  you  make  known  to  our 
said  Court  of  Common  Pleas  at  their  next  term,  and  have  you  then 
and  there  this  writ. 

Witness  my  hand  and  the  seal  of  said  court  at this 

day  of  ,  19 •  " 

Clerk. 


Plaintiff, 

vs. 

Defendants. 


No. 


In  pursuance  of  an  order  of  sale  in  partition  from  said  court  to  me 
directed,    I    will   offer   for  sale,   at   public  auction,  at   the   door   of   the 

court  house  in  the  City  of ,  Ohio,  on  the  day  of  , 

19 (  at o'clock  — m.,  the  following  described  real  estate  situate 

in  the  County  of  ,   in    the   State  of  Ohio  and  in  the  City  of 

t  and  bounded  and  described  as  follows,  to-wit:      (Here  insert 

description   of   real   estate).     Said    property   is   located   and   known   as 
No.  ;  Street,  ,  Ohio.     Appraised  at  $ 

Terms  of  sale,  cash.  • 

Sheriff  of  County,   Ohio. 

State  of  Ohio,  County,  ss.: 

cashier  of  The ,  a  newspaper  published  at  , 


County,  Ohio,    personally   appeared   and   made   oath   that  the 

attached  printed  advertisement  was  published  for  consecutive 

weeks    from    and    after    ,    19 ,    and    that    said    paper    is    of 

general   circulation    in   said   county   and   State. 


Subscribed  and  sworn  to  before  me  on  this  day  of 

19 • 


Notary  Public. County,  Ohio. 

As  commanded  by  this  writ,  T  have  caused  the  lands  and  tenements 
herein  described   to  be  duly  advertised  for days  next  preceding 


431  FORMS. 

the  day  of  sale,  in  The  ,  a  newspaper  printed  and  of  general 

circulation    in   County,    Ohio,   on    the   day   of  , 

19 ,  at  o'clock  — m.,  on  said   day  at  the  court  house   in  said 

county,  and  offered  for  sale  at  public  auction  the  lands  and  tenements 
described  in  this  writ. 

Said    sum    being    more    than    two-thirds    the    appraised    value,    and 

being  the  highest  and  best  bidder,  he, ,  was  declared 

the  purchaser  thereof.  . 


Sheriff  of  County,   Ohio. 

No.  277.     Petition  for  partition  when  advancements  have  been 
made. 

B.  c, 

Plaintiff, 

vs.  No. . 

J.  G.  S.,  and  The  Company, 


Defendants. 


Petition. 


Plaintiff  says  that  C.  S.,  of  the  City  of  ,  County, 

Ohio,  was,  in  her  lifetime,  seized  in  fee  simple  and  possessed  of  the 
following  described  real  estate:  (Here  insert  description  of  real 
estate). 

The  said  C.  S.  being  so  seized  of  the  above  described  real  estate, 
died  on  the  day  of  ,  19 ,  intestate,  leaving  the  de- 
fendant,  J.   G.   S.,   and   this   plaintiff,    her  only  children  and   heirs   at 

law,  and  leaving  a  husband,  relict,  M.  S.,  who  died  on  the  day  of 

,  19 . 

There  are  no  debts  of  the  estate  of  the  said  C.  S.,  deceased,  and 
she  left  no  personal  estate  except  a  few  articles  of  household  goods 
and  apparel,  which  were  evenly  divided  between  the  said  children  at 
her  death. 

By  the  death  of  the  said  C.  S.,  this  plaintiff  and  the  defendant,  J.  G. 
S.,  became  seized  in  fee  as  tenants  in  common  by  descent  from  the 
said  C.  S.,  deceased,  of  the  above  described  property,  subject  to  the 
interest  of  their  father,  M.  S.,  therein,  which  expired  with  his  death 
as  aforesaid. 

Plaintiff  further  avers  that  during  her  lifetime,  to-wit:   on  the  

day  of  ,  19 ,  the  said  C.  S.  made  an  advancement  to  the 

said  defendant,  J.  G.   S.,  of  certain   real  estate,  to-wit:      (Here  insert 

description   of  the  same),   and   of  the   value  of  dollars,  and 

in  the  partition  of  the  premises  of  which  said  C.  S.  died  seized  as 
aforesaid,  the  said  J.  G.  S.  should  be  charged  with  said  advancement 
of  the  said  lots  so  conveyed  to  him  as  an  advancement  as  aforesaid  la- 
the said  C.  S.,  deceased,  and  the  value  thereof  deducted  from  b:s  dis- 
tributive  interest   in    the   whole   estate. 

On  the day  of ,  19 ,  plaintiff  and  defendant.  J.  G.  S., 

borrowed  of  the  defendant,  The Company,  the  sum  of 

dollars,  and  to  secure  the  payment  thereof    executed  and   delivered  to 


MERWINE   ON    REAL   ACTIONS.                                     432 
said  company  their  mortgage  on  said  real  estate  for  the  sum  of 


dollars,  said  money  being  required  to  discharge  certain  assessments 
for  the  improvements  on  said  premises  so  left  by  said  C.  S.,  deceased, 

but  of  which  dollars  was   taken  and  used  by  the  defendant, 

J.  G.  S.,  and  no  part  thereof  applied  to  pay  and  discharge  said  assess- 
ments for  the  improvements  on  the  property  of  which  said  C.  S.  died 
seized  as  aforesaid.     There  remains  due  and  unpaid  of  said  mortgage 

indebtedness   the    sum    of   about dollars,    of   which   

dollars  should  be  first  charged  back  to  the  part  of  said  premises  as 
may  be  apportioned  to  the  said  J.  G.  S.  by  reason  of  the  appropriation 
thereof  by  him  as  aforesaid,  and  the  balance  apportioned  to  the 
respective  share  of  the  plaintiff,  and  the  said  defendant,  J.  G.  S.,  as 
equity  may  require  and  as  the  same  may  be  ascertained,  subject  to  the 
said  advancement  to  the  defendant,  J.  G.  S.,  as  aforesaid. 

The  said  premises,   of   which   said   C.   S.   died  seized,  as   aforesaid 

described,   descended   in   equal    shares,   part   thereof   to   this 

plaintiff,  and part  thereof  to  the  defendant,  J.  G.  S.,  subject, 

however,  to  the  said  advancement  so  made  to  the  said  J.  G.  S. 

The  plaintiff  desires  to  have  h interest  in  said  premises,  of  which 

said  C.  S.  died  seized  as  aforesaid,  set  off  to  her  in  severalty,  and  she, 
therefore,  prays  that  the  said  advancement  of  said  real  estate  so  made 
by  the  said  C.  S.  to  the  said  defendant,  J.  G.  S.,  be  taken  into 
account  in  arriving  at  the  respective  interest  of  the  plaintiff,  and 
the  defendant,  J.  G.  S.,  in  the  said  real  estate  of  which  the  said  C.  S. 
died  seized,  as  aforesaid,  and  that  the  same  may  be  partitioned  ac- 
cordingly, or  if  the  same  can  not  be  partitioned  by  metes  and  bounds 
without  manifest  injury,  then  that  such  proceedings  be  had  as  are  au- 
thorized by  law;  that  of  said  mortgage  indebtedness  the  said  defend- 
ant, J.  G.  S.,  be  required  to  assume  and  discharge  exclusively  the  said 

dollars    thereof,    so,    as    aforesaid,    taken    and    used    for    his 

own   benefit;    that  the  said   The  Company  be  made   a  party 

defendant  herein,  and  required  to  set  up  its  said  mortgage  claim  so 
that  the  same  may   be  properly  adjusted   and   protected,  and  for  all 

proper  and  equitable  relief.  , 

Attorneys   for  Plaintiff. 

Petition  should  be  verified. 

No.  278.     Petition  in  partition — An  accounting  for  rents  and 
profits. 

Court  of  Common  Pleas, County,  Ohio. 

Petition  fob  Partition. 
M.   T.   H.,  Plaintiff. 

vs.  No.  . 

R.  T.  H.,  Defendant. 

Your  netitioner,  M.  T.  H.,  of County,  State  of  Ohio,  alleges 

that   he,    together   with    the   said   R.    T.    H.,    who    resides    in    

County,  Ohio,   is   seized   of   an   estate  as  tenants   in   common,   in   the 


433 


FORMS. 


following   described    real   estate,    situate    in   the   County    of  , 

State    of   Ohio,    and    in    the   of   ,    and    bounded    and 

described  as  follows,  to-wit:      (Here  insert  description  of  premises). 

'  Plaintiff  further  alleges  that  he  and  the  defendant  hold  the  premises 
in    the    following    proportions,    to-wit:      Said    plaintiff    is    the    owner 

in  fee  simple  of  the  undivided thereof,  and  the  said  defendant 

is  the  owner  in  fee  simple  of  the  undivided  thereof. 

Plaintiff  further  says  that  since  he  and  the  defendant  have  owned 
the  said  premises  above  described  in  common,  to-wit:  since  the 

day    of   t    18 ,    the    defendant,   R.    T.    H.,   has    received    all 

the  rents  and  profits  arising  therefrom;  that  plaintiff  has  paid  all 
the  taxes,  insurance,  repairs,  and  improvements  on  said  premises,  and 
has  paid' certain  incumbrances,  the  exact  amount  of  which  plaintiff 
is  unable  to  state,  and  plaintiff  can  not  state  the  exact  amount  of  the 
rents  and  profits  so  received  by  said  R.  T.   H. 

Plaintiff  is  desirous  of  holding  his  interest  in  said  premises  in 
severalty,  and  therefore  prays  that  his  interest  may  be  set  off  to 
him,  and'  if  the  same  can  not  be  done  without  manifest  injury,  then 
that  the  premises  be  sold  or  other  order  taken  pursuant  to  the  statute 
in  such  case  made  and  provided,  and  that  an  accounting  be  made 
of  the  rents  and  profits  of  said  premises,  the  taxes,  insurance,  repairs 
and  improvements  and  encumbrances  paid  by  plaintiff  up  to  the  date 
when  the  partition  shall  be  made;  that  the  same  may  be  declared 
to  be  a  lien  on  the  premises  in  favor  of  the  plaintiff  and  for  further 

and   proper   relief.  —  ' 

Attorney  for  Plaintiff. 

The   petition   should  be   verified. 


No.  279.     Petition  for  equitable  partition— Advancements. 

B.  C, 

Plaintiff, 

No.  • 

vs. 

J.  G.  S.,  and  The  Company, 

Defendants. 

Petition. 

1.    First  cause  of  action. 

0n    the    day    of    ■,    19 ,    J-    B.,    late    of   — 

Countv  Ohio,  hereinafter  designated  decedent,  died  intestate.  Plain- 
tiff and  said  J.  B.,  J.  B.  B.  and  T.  B.,  are  his  children  and  only  heirs 
at  law,  and  the  defendant,  H.  B.,  is  decedent's  duly  appointed,  qualified 
and  acting  administrator. 

Said  decedent  died  seized  in  fee  simple  of  the  following  lands  and 
tenements   situate    in   said    county,   and    described   as    follows,   to-wit: 

(Here  give  description  of  same).  

Decedent  left  personalty  to  the   amount  of  about  $  .     His 

debts  amounted  to  the  sum  of  $  • 


MERWINE   ON    REAL    ACTIONS.  434 

Decedent,  in  his  lifetime,  advanced  to  his  son,  J.  B.,  toward  and  as 
a  part  of  his  distributive  share  of  decedent's  estate,  the  following 
real  estate  in  the  county  aforesaid  and  described  as  follows:  (Give 
description  here),  and  the  deed  of  conveyance  to  said  J.  B.,  specified 
said   real  estate  to  be  of  the  value  of  $ . 

In  like  manner  decedent,  in  his  lifetime,  advanced  to  the  said 
J.  B.  B.  as  his  part  of  his  distributive  share  of  decedent's  estate,  the 
following  described  real  estate,  to-wit:  (Give  description  here)  and 
the  deed  of  conveyance  to  the  said  J.  B.  B.  specified  said  real  estate 
to  be  of  the  value  of  $ . 

In  like  manner  decedent,  in  his  lifetime,  advanced  to  the  said 
T.  B.,  as  his   part  of  his  distributive  share  of   decedent's  estate,  the 

sum  of  $ ,  in  money,  and  the  said  T.  B.   received  said  money 

as  and  for  such  advancement. 

2.     Second   cause   of  action. 

Ever  since  decedent's  death,  the  defendants,  J.  B.  and  J.  B.  B.  and 
T.  B.,  have  been  in  the  use  and  enjoyment,  and  have  received  all  the 
rents,  issues  and  profits  of  the  real  estate  first  herein  described.  The 
fair  annual  rental  value  of  said  real  estate  first  herein  described  is  of 
the  value  of  $ . 

Wherefore,  plaintiff  prays  judgment  against  said  defendants,  J.  B., 

J.  B.  B.  and  T.  B.  for  the  value  of  said  rents  from  the day 

°f   .    19 ,    at    the    rate    of   § ,    per    annum;    that   said 

real  estate  so  advanced  to  said  defendants  and  the  personalty  so 
advanced  to  defendant,  T.  B.  and  the  fund  now  in  the  hands  of 
said  defendant,  administrator,  be  brought  into  hotchpot  so  that  a 
just  and  equal  division  in  partition  may  be  made  of  the  real  estate 
first  herein   described   among   the   plaintiffs,   the   said   J.   B.,   J.   B.    B. 

and  T.  B.;  that  from  said  lands,  the  value  of  $ there  be  deducted 

from   the  one-fourth   part  of  said   J.    B.'s   share,    $ be   deducted 

from  the  part  of  the  share  of  the  said  J.  B.  B.;   that  the  said 

T.  B.  be  charged  with  the  sum  of  $ against  his  distributive  share 

of   the    personalty    of    decedent,    and    if    his   share    be    more    than    his 

distributive  portion  thereof  the  residue  be  deducted  from  his  said  

part  of  said  land  to  be  partitioned;  that  the  court  cause  to  be  parti- 
tioned the  real  estate  first  herein  described  to  plaintiff  and  to  and 
among  the  said  J.  B.,  J.  B.  B.  and  T.  B.  in  view  of  said  advance- 
ments and  in  accordance  with  their  respective  rights,  regard  being 
had  thereto,  and  if  partition  can  not  be  made  that  said  real  estate 
may  be  sold  and  that  plaintiff  may  have  such  other  and  further 
relief  as  equity  and  the  nature  of  the  case  may  require. 

The    petition    should    be    verified. 

(Note:  For  form  of  petition  by  life  tenant  against  his  co-devisees 
who  are  life  tenants,  see  Whitaker's  Code  Forms,  Vol.  1,  p.  541, 
which  is  adapted  from  Hieatt  v.  Black,  14  C.  C.  194.  In  this  last 
case  it  was  held   that  the  petition  stated  a  cause  of  action). 


435  FORMS. 

No.  280.     Petition  for  partition  by  guardian. 

Court  of  Common  Pleas,  County,  Omo. 

L.  B.  M.,  as  Guardian  of 
J.    M.    F.,   an   infant, 
Plaintiff, 

No-  • 

G.   D.   F.,   J.   H.   F.,  B.   T.  F., 
and  H.  R.  H., 

Defendants. 

Petition. 

Plaintiff   says   that   on   the day   of  ,   19         .   she 

was  duly  appointed  guardian  of  the  person  and  estate  of  J-  M.  F., 
an  infant,  by  the  Probate  Court  of  County,  Ohio,  and  there- 
upon duly  qualified  and  entered  upon  the  discharge  of  the  duties 
of  her  office,  and  that  this  action  is  brought  by  her  as  such  guardian. 
Plaintiff  says  that  her  said  ward  is  a  grandchild  of  J.  H.  F.,  late 

oi- County,  Ohio,  deceased,  who  died  intestate  on  the  

day    of  f    19 ;    that    the    last   will    and    testament   of   said 

J.   H.    F.,    deceased,    was    duly    proved    in    the    Probate   Court   of   said 

County,  where  the  said  decedent  was  domiciled  at  the  time 

of  his  death,  and  was  duly  admitted  to  probate  and  record  on  the 
day  0f  ,  19 .  A  copy  of  said  will  is  hereto  at- 
tached marked  exhibit  "A"  and  made  a  part  of  this  petition;  that 
said  decedent  by  the  terms  of  his  last  will  and  testament  devised 
all  of  his  property,  both  real  and  personal,  to  his  wife,  M.  J.  F.,  for 
?nd  during  her  natural  life,  with  remainder  after  her  death  to  be 
divided  equally  among  his  children,  the  defendants  herein,  and  his 
— andchild  J.  W.  F.,  daughter  of  his  deceased  son,  W.  J.  F.,  being 
plaintiff's  said  ward  herein,  the  said  J.  M.  F.  being  one  and  the 
same  person  named  and  designated  by  said  J.  H.  F.,  deceased,  in  his 
last  will  and  testament,  as  "A.  J.,  my  grandchild  and  daughter  of 
my  deceased  son  W.  J.  F." 

The  -aid  M  J.  F.  was  duly  appointed  and  qualified  as  executrix 
of  the  last  will  and  testament  of  said  J.  H.  F.,  deceased  on  the 
dav  of  19 and  continued  to  act  as  such  execu- 
trix  until    the  day   of  -  -    19-  -.   at    which    time   she 

died  testate,   leaving  plaintiff's   said   ward  and   the   defendants  herein 
named  as  her  next  of  kin   and  the   only   heirs  at  law. 

The  last  will  and  testament  of  said  M.  F.  J.,  deceased,  was  duly 
proved    in    the    Probate    Court   of   •  County.    Ohio,    where    the 

said  decedent  was  domiciled  at  the  time  of  her  death,  and  waa  duly 
admitted  to  probate  and  record  on  the  -  -  day  of  ,  . 

a    ,    ,-r,    vol     na«-e  of   the    will    records   of   said 

being    recorded    in   Vol.   .   pa^e  u 

county.      Said    decedent    made    no    disposition    ot    am     leal 

estate  in  her  last  will  and  testament.  ,„,„*,-    thP 

The  defendant  G.  D.  F.  was  duly  appointed  and  qualified  m  the 
Probate  Court  of County   on   the day   of 


MERWINE   ON    REAL    ACTIONS.  436 

19 f    as   administrator   with    the    will    annexed    of    said    M.    J.    F.'s 

estate  and   is  now  acting  as  such. 

All  of  the  debts  and  claims  against  the  estate  of  said  J.  H.  and 
M.  J.  F.  have  been  fully  paid. 

The  said  J.  H.  F.  died  seized  in  fee  of  the  first  and  second  parcels, 
and  that  he  and  the  said  M.  J.  F.  each,  respectively,  died  seized 
in  fee  of  the  undivided  half  of  the  third  parcel  of  the  real  estate 
hereinafter   described. 

Plaintiff's  said  ward,  J.  M.  F.,  and  the  defendants  herein  named, 
are  all  the  heirs  at  law  and  the  devisees  of  the  said  M.  J.  F.,  de- 
ceased, and  as  such  devisees  and  heirs  at  law,  respectively,  they 
are  seized  of  the  estate  in  fee  as  tenants  in  common  of  the  following 
described   real   estate   of  which  said   J.   H.   and   M.   J.   F.   died  seized, 

as  above  stated,  and  all  of  which  is  situate  in  the  City  of  , 

County   of  in   the   State  of  Ohio,   and   described   as   follows, 

to-wit:      (Here  insert  description  of  real  estate). 

The  said  J.  M.  F.  and  the  said  defendants  G.  D.,  J.  H.,  B.  T.  F. 
and  H.  R.  H.  are  entitled  each  to  an  undivided  part  of  said  real  estate. 

Wherefore,  plaintiff  as  guardian  as  aforesaid,  prays  that  her  said 
ward's  interest  in  said  premises  may  be  set  off  to  her  in  severalty; 
that  partition  may  be  made  of  all  real  estate  among  the  several 
parties  in  the  proportion  above  stated,  and  if  that  cannot  be  done 
without  manifest  injury,  that  such  proceedings  be  had  as  are  au- 
thorized by  law,  and  for  all  other  necessary  and  proper  relief. 


Attorneys  for  Plaintiff. 
The  petition  should  be  verified.     See  form  No.  . 

No.  281.     Answer  in  partition. 

Court  of  Common  Pleas,  County,  Ohio. 

L.  B.  Mi,  as  Guardian  of 
J.    M.   F.,   an   infant, 
Plaintiff, 

vs.  No.  ■• 

G.   D.   F.,   J.   H.   F.,  B.   T.  F., 
and  H.  R.  H., 

Defendants. 

Answer  in  Partition. 

Now   comes   W.   H.   W.,   one   of   the   defendants   above   named,   and 

for  his  answer  herein,  says  that  he  admits  that  on  the  day 

of  ,  18 ,  the  said  W.  W.  died  testate,  whose  last  will  and 

testament  was  duly  filed  and  probated  in  the  Probate  Court  of  

County,  Ohio,  and  recorded  in  Vol.  ,  page  of  the  Will  records 

of  said County,   and  that  a  duly  certified  copy  of  said  will 

is  attached  to  the  petition  herein,  marked  Exhibit  A,  and  made  a 
part  thereof,   for   all   purposes. 

Said  defendant  admits  that  said  W.  W.  died  leaving  surviving  him 


437  FORMS. 

C.  W.  his  widow,  since  deceased,  and  the  following  named  children: 
the  plaintiff  herein,  C.  P.  W.;  and  the  defendants  F.  C.  W.,  H.  L.  W., 
M.  E.  M.    (nee  W.),  W.  H.  W  and  G.  M.  W. 

Said  defendant  further  admits  that  the  said  W.  W.  died  seized 
in  fee  simple  of  the  following  real  estate,  to-wit:      (Here  describe  it). 

Said  defendant  further  admits  that  said  real  estate  was,  under 
the  said  last  will  and  testament  devised  to  the  said  C.  W.,  C.  P.  W., 
H.  L.  W.,  F.   G.  W.,   M.   E.  M.,  W.   H.   W.  and  G.   M.    W. 

Said  defendant  further  admits  that  the  said  C.  W.,  widow  of  the 
said  W.  W.,  has  since  deceased;  that  the  said  G.  M.  W.  has  since 
deceased,   without  children,   leaving  the  said  M.   W.,   his   widow    aged 

years. 

Said  defendant  denies  that  the  said  real  estate  set  forth  in  said 
petition  and  hereinabove  described  is  owned  as  tenants  in  common 
by  the  plaintiff  and  the  defendants  in  the  following  proportions,  to-wit: 

M.  W.,  widow  of  G.  M.  W.,  a  life  estate  in  the  undivided  part 

thereof;    C.   P.   W.,   the    undivided   part   thereof;    F.    G.    W.,    the 

undivided part  thereof;  H.  L.  W.,  the  undivided part  thereof; 

and  W.  H.  W.,  the  undivided  part  thereof,  and  all  of  said  estates 

and  interests,  being  subject  to  the  life  estate  of  the  said  M.  \\\, 
widow  of  G.  M.  W.,  in  the  undivided  part  thereof. 

Said  defendant  further  admits  that  all  the  debts  and  claims  against 
the  estate  of  said  W.  W.,  deceased,  have  long  since  been  paid.  For 
a  further  answer  herein,  said  defendant  says,  that  the  said  W.  W. 
died  seized  in  fee  simple  in  addition  to  the  property  described  and 
set    forth    in    the    petition    herein    of    (Here    give    description    of    the 

same) ;    that  on  the  day  of  ,  IS ,  the  defendants 

herein,  F.  G.  W.,  H.  L.  W.,  M.  E.  M.,  W.  H.  W.  and  G.  M.  W.  con- 
veyed and  transferred  by  proper  deed  to  the  plaintiff  herein  said 
real  estate  with  an  agreement  and  understanding  between  said  defend- 
ants and  the  said  plaintiff  that  at  the  time  of  the  sale  of  the  other 
property,  of  which  the  said  W.  "W.  died  seized  in  fee  simple,  and  at 
the  settlement  of  his  said  estate,  the  value  of  said  real  estate  at  the 
time  of  said  conveyance  to  the  said  C.  P.  W.  was  to  be  deducted 
from  the  distributive  share  of  the  said  C.  P.  W.  in  the  said  estate 
of  the  said  W.  W.,  and  to  F.  G.  W.,  H.  L.  W.,  M.  E.,  M.  W., 
and  W.  H.  W. 

Said  defendant  further  says  that  at  the  time  of  the  conveyance 
of  the  said  real  estate  to  said  C.  P.  W.,  plaintiff  herein  as  aforesaid, 
the  reasonable  and  fair  value  of  the  same  was  the  sum  of  $ . 

Defendant  further  says  that  the  said  real  estate  set '  forth  in 
said  petition  is  now  owned  in  tenancy  in  common  by  the  plaintiff 
and  the  defendants  herein  in  the  following  proportions:     M.  W.,  widow 

of  G.  M.  W.,  the  life  estate  in  the  undivided  part  thereof,  and  the 

part  of  the dollars  due  from  plaintiff  herein  to  the  defend- 
ants  herein   on   account   of  the  conveyance   of   said   lot   as   aforesaid; 

C.  P.  W.,  the  plaintiff  herein  an  undivided  part  herein,  subject  to 

the  payment  of  dollars  to  the  defendants  herein  on  account 

of  the  conveyance  of  said  lot  as  aforesaid;  F.  G.  W.,  an  undivided  


SI ER WINE    ON    REAL    ACTIONS.  438 

part   thereof,   and  a  ■  interest   in  the   said  sum   of  dollars 

c:i    account   of   said    conveyance   of   said    lot    as    aforesaid;    H.    L.    W., 

an  undivided  part  thereof,  and  a  — —  interest  in  the  said  sum  of 

dollars  on  account  of  the  conveyance  of  said  lot  as  aforesaid; 

said  W.  H.  W.,  an  undivided part  thereof,  and  a interest  in 

the  said  sum  of  dollars  on  account  of  the  said  conveyance  of 

said  lot  as  aforesaid,  all  of  said  estates  and  interests  being  subject 
to  the  life  estate  of  the  said  M.  W.,  widow  of  the  said  G.  W.  W.  of 
an  undivided  part   thereof. 

For  a  further  answer  herein  said  defendant  says  that  he  desires 
to  hold  his  said  estate  and  interest  in  said  premises  in  severalty, 
and  to  have  partition  made  of  said  premises  according  to  law. 

Wherefore  said  defendant  prays  that  partition  of  the  said  premises 
may  be  had  according  to  law;  that  if  it  shall  appear  that  partition 
cannot  be  made  without  manifest  injury  to  the  value  thereof,  then 
that  said  premises  be  sold  and  other  orders  taken  pursuant  to  the 
statute  in  such  case  made  and  provided,  and  that  a  distribution  may 
be  made  of  the  proceeds  of  such  sale  according  to  the  rights  and 
interest  of  the  defendant  herein,  as  set  forth  herein,  and  of  the 
several  parties  herein,  and  that  he  may  have  all  other  and  further 
proper  orders,  judgments,  decrees,  relief  and  protection  in  the  premises. 


Attorney   for   W.   H.   W. 
The   answer   should   be  verified. 


No.  282.     Cross-petition  of  defendant  setting  up  a  mortgage 
claim  on  real  estate  sought  to  be  partitioned. 

Court  of  Common  Pleas, County,  Ohio. 

L..   B.   M.,  as  Guardian   of 
J.    M.    P.,   an    infant, 
Plaintiff, 

vs-  No. , 

G.   D.   F.,   J.   H.   F.,   B.   T.  F., 
and  H.  R.  H., 

Defendants. 

Cross-Petition. 

1.     First    cause   of   action. 

Now  comes  the  defendant  L.  R.  and  files  herein  her  cross-petition, 
and  says  that  said  decedent  C.  W.,  and  her  estate,  is  indebted  to 
her  upon  a  promissory  note  of  which  the  following  is  a  true  and  correct 
copy,  to-wit:      (Here  describe  note). 

There  are  no  endorsements  on  said  note  and  no  payments  have 
been    made    on    the    same,    and    there    is   owing   on    said    note    to    this 

defendant  the  sum  of  -  —  dollars  with  interest  from  the  

day   of  — ,    19 ,   at    the   rate    of  per   cent,    per   annum, 

which  she  claims. 


439 


FORMS. 


19 


2.     Second   cause  of  action. 

This  defendant  further  says  that  on  the  -  -  day  of 


-,  the  said  defendants  M.  E.  M.,  M.  W.,  F.  G.  W.,  H.  L.  W.  and 
plaintiff,  C.  P.  W.,  together  with  said  C.  W.,  deceased,  in  order  to 
secure  the  payment  of  the  note  aforesaid,  duly  executed,  acknowledged 
and  delivered  to  this  defendant  their  certain  mortgage  deed  and  thereby 
their  proportionate  parts  of  the  premises  in  the  petition  described  were 
conveyed    to    this    defendant,   her   heirs   and   assigns    forever,    and    on 

the  day  of  .   19 ,  at  o'clock   of  said   day, 

said    mortgage    was    duly    filed    for    record    and    thereafter    the    same 

was  duly  recorded  in  Vol.  ,  page  of  mortgage  records  of  said 

—  County,  Ohio. 

There  is  unpaid  on  said  indebtedness  the  sum  of  $ ,  principal. 

and  interest  at  the  rate  of per  cent,  per  annum  from  the ■ 

day  of  ,  A.   D.   19 . 

^Therefore  the  defendant  prays  the  protection  of  the  court  for 
her  said  claim  and  lien,  and  that  in  the  event  of  a  sale  of  the  said 
premises  in  the  petition  described,  the  proceeds  may  be  applied  to 
the  satisfaction  of  her  said  claim  and  the  lien,  in  the  order  of  its 
proportion  and  priority,  and  that  she  may  have  all  other  and  further 
proper  and  necessary  orders,  judgments,  decrees,  relief  and  protection 
in  the  premises  as  may  be  necessary  and  proper,  and  as  the  nature 
of  the  case  may  in  equity  require. 


Attorney  for  Defendant,  L.  R. 
Verified  as  in  other  pleadings. 

No.  283.     Order  for  publication  for  unknown  heirs  or  devisees 
of  . 

Court  of  Common  Pleas,  —  County,  Ohio. 

L.  B.  M.,  as  Guardian  of 
J.    M.    F.,    an    infant, 
Plaintiff, 

vs.  No.   . 

G.   D.   F.,    J.    H.    F.,   B.   T.   F., 
and  H.  R.  H., 

,     unknown    heir    of    , 

deceased, 

Defendants. 

Order  for  Purification  for  Unknown  Heirs  or  Devisees  of  . 

This   cause   came  on    to   be   heard   and   it   being  made   to  appear  to 
the   court  by   proper  proof  that  the  name  and   residence  of   the   heir 

of  ,  deceased,  are  unknown  to  the  plaintiff,  it  is  ordered  that 

proceedings  hereinafter  may  be  had  against  him  without  naming  him 
and  that  he  may  be  served  by  publication  herein,  as  in  other  cases 
of  service  by  nublication,  and  r*esi£nvited  as  the  unknown  heir  of 
,    late   of   County   and   State   of   .    deceased, 


MERWINE   ON    REAL   ACTIONS.  440 

"Which    publication     shall     be    made     six     consecutive     weeks    as     in 
other   cases. 

(Note:  This  order  and  the  following  notice  is  made  under  favor 
of  R.  S.  §  5040  (Gen'l  Code,  §  11287),  which  recites:  That  when  an  heir 
or  devisee  of  a  deceased  person  is  a  necessary  party,  and  it  appears 
by  affidavit  that  his  name  and  residence  are  unknown  to  the  plaintiff, 
proceedings  against  him  may  be  had  without  naming  him;  and  the 
court,  or  a  judge  thereof,  shall  make  an  order  respecting  the  publi- 
cation of  notice,  but  the  order  shall  require  not  less  than  six  weeks' 
publication). 

No.  284.     Legal  notice  to  unknown  heirs. 

Court  of  Common  Pleas,  County,  Ohio. 

L.  B.  M.,  as  Guardian  of 

J.   M.   F.,  an   infant,    Plaintiff, 

vs.  No.  . 

G.   D.   F.,   J.   H.   F.,  B.   T.  F., 

and  H.  R.  H., 

,    unknown    heirs   of    , 

deceased,   Defendants. 

Legal  Notice  to  Unknown  Heirs   of  . 

The  heirs  of ,  late  of County  and  State  of , 


whose   names  and   places  of  residence  are   unknown,  will  take  notice 

that  on  the day  of ,  A.  D.    one  thousand  nine  hundred 

and ,  ,  as  plaintiff,  commenced  a  civil  action  for  parti- 
tion   against    them,    and    and    ,    etc.,    as    defendants 

in  the  Court  of   Common  Pleas  of  County,  Ohio,  where  the 

same  is  now  pending,  demanding  partition  of  the  following  premises, 
situated  in  the  said  county  and  State:  (Here  insert  description  of 
real   estate). 

The  plaintiff  demands  partition  of  said  premises  as  follows:    (Here 
give    the    demand    for    partition,    dower    assignment,    etc.,    as    in    the 

petition).     You  are  required  to  answer  the  petition  on  the  

day  of ,  A.  D.  19 ,  or  the  same  will  be  taken  as  confessed 

and  judgment  rendered  and  partition  made  accordingly. 

C.   D.,  Plaintiff. 

No.  285.     Form  for  legal  notice — Sale  of  real  estate  in  par- 
tition. 

Court   of   Common   Pleas,   County,   Ohio. 

L.   B.   M.,   as   Guardian   of 

J.  M.  F.,  an  infant,    Plaintiff, 

vs.  No.  . 

G.  D.  F.,  J.  H.  F.,  B.  T.  F., 

and  H.  R.  H.,  Defendants. 

In   pursuance    of   an   order   of    sale   in   partition    from    said    court 
to  me  directed,   I  will   offer   for   sale,  at  public  auction,   at  the   door 


441  FORMS. 

of  the  court  house,   in   the   City  of  ,  County,  Ohio, 

on    the    day    of    ,    A.    D.    19 ,    at    o'clock, 

a.   m.,  the  following  described  real  estate   in  the  County  of  , 

State  of  Ohio,  and  in  the  of  ,  and  more  particularly 

described  as  follows:      (Here   insert   description). 

Appraised  at   $ . 

The  above  property  will  be  sold  at  the  door  of  the  court  house 
by  the  sheriff  for  not  less  than  two-thirds  the  appraised  value  thereof, 
free  of  dower. 

Terms  of  sale:   Cash  on  day  of  sale. 

,  Sheriff. 


No.  286.     Form  of  certificate  to  probate  court. 

Probate  Court  of  County,  Ohio. 

In   re  estate  of  ,  deceased. 

Statement  of   Assets,   etc.,   to   Procure   Certificate  to  File  in 

Proceeding  in  Partition. 

,    as    administrator    of    the    estate    of   ,    deceased, 

now  comes  and  represents  to  this  court  that  the  assets,  indebtedness 
and  expenses  of  the  estate  he  represents  are  as  follows,  to-wit: 


Assets. 

(Here  detail  assets  as  cash,  notes,  bonds,  etc.,  and  all  property 
out  of  which  funds  may  be  realized.) 

Debts. 
(Here   insert   detailed    statement   of    debts.) 

Expenses. 

(Here  insert  detailed  statement  of  expenses  including  costs  of 
administration,  etc.) 

Amount    required    dollars    ($ ). 

A  certificate  is  therefore  asked  of  this  court  stating  the  amount 
necessary  to  pay  said  indebtedness  in  addition  to  the  assets  now  in 
his  hands,  in  order  to  present  said  certificate  to  the  Court  of  Common 

Pleas,    of    County,    Ohio,    where    partition    is    sought    of    the 

lands  of  the  estate  represented  by  ,  administrator. 


Sworn  to  before  me  and  subscribed  in  my  presence  on  this 
day  of  ,  19 . 


MEKWINK    ON    REAL    ACTIONS. 


442 


No.  287.     Journal  entry  allowing  above  application. 

Probate  Court  of County,  Ohio. 

In  re  estate  of  ,   deceased. 

Statement   of   Assets,    etc.,   to   Procure   Certificate   to    File   in 

Proceeding  in  Partition. 

Upon    application    of   — as    administrator   of    the   estate   of 

-,  deceased,  in  due  form  of  law  as  required  by  statute,  asking 


this  court  for  a  certificate  of  indebtedness  to  be  filed  in  certain  pro- 
ceedings   in    the    partition    of    the    estate    of    ,    deceased,    now 

pending   in   the  Court  of  Common    Pleas,   -      County,   Ohio,  and 

the  same   was   submitted    to   the   court,   and   the  court  upon   due   con- 
sideration   thereof   finds    that    $ will    be    necessary    in    addition 

to    the    assets    now    in    the   hands    of    said    administrator    to    pay    the 
debts   of  decedent  and   the  expenses   of  administering  said   estate. 
It   is   therefore   ordered    that   such   certificate    be    issued    from    this 

court  to  said  ,  as  such  administrator,  for  him  to  file  in  said 

partition  proceedings  in  said  Common  Pleas  Court  aforesaid. 

No.  288.     Certificate  under  previous  order. 

Probate  Court  of  County,   Ohio. 

In  re  estate  of  ,   deceased.  No.  . 


Statement   of   Assets,   etc..   to   Procure    Certificate   to   File   in 

Proceeding  in  Partition. 

State  of  Ohio,  County,  ss.: 

I, ,    sole   judge    and    ex   officio   clerk   of    the    Probate   Court 

of  County,  Ohio,  do  hereby  certify,  that  the  sum  of  $ , 

in  addition  to  the  assets  now  in  the  hands  of  said  administrator  will 
be  necessary   to  pay   the  debts  and  expenses   of  said  estate. 

In    testimony   whereof,    I    have    hereunto   set   my    hand   and   affixed 

the   seal    of    said    court    at   ,    this day    of   , 

A.  D.  19 .  . 

Probate  Judge  and  ex  officio  Clerk. 

No.  289.     Motion  by  administrator  asking  for  fund  from  estate 
to  pay  debts  of  decedent. 

■,  Plaintiff, 

vs. 

,    Defendants. 

Motion. 


Now   comes  ,   as  administrator  of  the   estate   of   , 

deceased,   and  having  shown   to  the  court  herein   the  certificate  from 
the  Probate  Court  of  -  -  County,  Ohio,  a  copy  of  which  is  hereto 

attached  and  made   a   part  of   this   motion,   and   moves   the   court   for 


443  FORMS. 

an  order  directing  that  out  of  the  first  monies  arising  from  the  sale 
in    this    case,    an    amount    sufficient    to    pay    the    debts    and    expenses 

of  administering   the   estate   of   ,   deceased,   be   paid   him    by 

the  sheriff  of  said  county.  . 

As    Administrator    of    the    estate 
of  ,   deceased. 

No.  290.     Entry  sustaining  above  motion. 

,   Plaintiff. 

vs. 

,    Defendants. 

Entry. 

This  cause  came  on  for  hearing  on  the  motion  of  ,  as  ad- 
ministrator of  the  estate  of  ,  deceased,  was  argued  by  counsel 

and  submitted  to   the  court  and  upon  due  consideration   whereof  the 
court  finds  said  motion  well  taken  and  sustains  the  same. 

It    is    therefore    ordered    that    the    sheriff   out    of    the   first    monies 
coming  into  his  hands   from  a  sale  of  the  premises   in  said  partition 

proceedings,    there    be    paid    over   to    said    ,    as    administrator 

of   the   estate   of   ,    deceased,   the   sum   of   $ according 

to   law. 

No.  291.     Proof  of  publication. 

State  of  Ohio,  County,  ss.: 

,    foreman    of    The    ,    a    newspaper    published    and 

printed   in  ,  County,  Ohio,    personally  appeared  and 

made  oath  that  the  attached  printed  advertisement  was  published  six 

consecutive  weeks  in  said  newspaper  from ,  19 ,  and  that 

said   newspaper  is  of  general  circulation  in  said   county. 


Subscribed  and  sworn  to  this  day  of  ,  19- 


Notary  Public.  County.  Ohio. 

No.   292.     Legal  notice — Service  by  publication. 

and  ,   a   minor  years  of  age,   all    residing 

at  are  hereby  notified  that  on  the  day  of  , 


19 ,    filed    his    petition    in   the    Ccurt   of   Common    Pleas. 

County,    Ohio,    in    case   No.   against    the   above    named 

parties    and    others,    heirs    of    ,    deceased,    praying    for    the 

partition    of    the    following    described    real    estate    in    the    County    of 

,    in    the    State    of    Ohio,    and    in    the    City    of   ,    and 

more  particularly  described  as   follows,  to-wit:      (Here  insert    descrip- 
tion of  the  real   estate). 

The   said and   ,   above    named,  •  are    heirs    of   the 

saj,j  _ and  are  each  entitled  to  an  undivided  interest 


MERWIXE    OX    RE.\L    ACTIONS.  444 

in  said  lands,  and  desires  to  have  his  interest  therein  set  off 

to  him  in  severalty,  or  if  that  can  not  be  done  without  manifest  injury 
that    such    proceedings    be    had    as    are   authorized    by   law. 

Said  parties  are  required  to  answer  on  or  before  the  day 

of  ,   19 .  T.  T.  D. 

Attorney   for  Plaintiff. 

No.  293.     Affidavit  for  service  by  publication. 

The  State  of  Ohio,  County,   ss.: 

Personally  appeared  before  me,  ,  the  plaintiff  in  the  above 

action,  being  first  duly   sworn,   says  that  service  of  summons  cannot 

be   made   on   the   defendants,   and  ,   a   minor   

years  of  age,  and  this  cause  is  one  of  those  mentioned  in  (R.  S.  §  5040) 
Gen'l   Code   §  11287. 


Sworn   to  before  me  by  and   subscribed   by   him   in   my 

presence,  this  day  of  ,  19 . 


Notary  Public,  County,  Ohio. 

No.  294.     Report  of  commissioners  assigning  dower  by  metes 
and  bounds,  and  awarding  partition  by  metes  and  bounds. 

We.  the  undersigned  commissioners,  named  in  the  writ  hereto 
annexed,  after  being  duly  sworn,  and  upon  actual  view  and  careful 
examination  of  the  premises  described  in  said   writ,  do  assign  to  the 

said  ,  widow  of  said  — ,  deceased,  as  and  for  her  dower 

estate  therein,  so  much  of  said  premises  as  are  comprised  within  the 
following  boundaries,  to-wit:  (Here  describe  the  real  estate  so  as- 
signed as   dower). 

We  do  also  set  off  and  assign   to   the   defendant,  ,   for  his 

share  of  said  real  estate  described  in  the  petition,  so  much  thereof 
as  is  comprised  within  the  following  boundaries,  to-wit:  (Here  de- 
scribe the  share  in  severalty) ;  to  the  defendant  —  (Here  de- 
scribe the  share  in  severalty). 

No.  295.     Form  of  writ  where  dower  can  not  be  assigned  by 
metes  and  bounds. 

We,  the  undersigned  commissioners,  named  in  the  writ  hereto 
annexed,  after  being  duly  sworn,  and  upon  actual  view  and  careful 
inspection  of  said  premises  in  said  writ  described,  are  of  the  opinion 

that  said  dower  of  said  ,  widow  of  said  ,   deceased, 

cannot  be  assigned  to  her  by  metes  and  bounds  therein,  and  instead 
of  assigning  to  her  her  dower  by  metes  and  bounds,  we  do  assign 
to   her,   as   and   for  her   dower    in   and   to   the   real    estate    described 

in    the   petition,    the    sum    of    $- ,    per   year,    for    and    during   her 

natural  life,  and  we  do  hereby  make  the  payment  thereof  a  charge 
upon  said  lands  in  whose  hands    soever  the  same  may  come. 


CHAPTER   XL 

SALE  OF  REAL  ESTATE  BY  RELIGIOUS  AND  OTHER 

KINDRED  SOCIETIES. 


SECTIOX. 

347.  General    discussion, 

348.  Religious    society    may    peti- 

tion the  court  for  sale  of 
real  estate  used  for  ceme- 
tery purposes — Xotice  by 
publication  to  be  given — 
Procedure. 

349.  In  what  cases  certain  churches 

or  church  societies  may 
sell    lands. 

350.  The   kind    of   notice   given    in 

such  case  and  the  order 
of   the   court   therein. 

351.  Procedure    for     sale    of    real 

estate  in  certain  cases  af- 
ter certain  church  or- 
ganizations have  consoli- 
dated. 

352.  How   notice    of   the   pendency 

of  the  petition  in  such 
case    shall    be    given. 

353.  When    and    how    real    estate 

of  certain  extinct  incorpo- 
rated religious  societies 
may   be    sold. 

354.  Duties   of   trustees  of  extinct 

parishes  and  their  duties 
as  to  moneys  received 
from    sale   of   real    estate. 

355.  Who  are   to  be   made   parties 

to  proceedings  for  the  sale 
of   such  real   estate. 


SECTIOX. 

356.  Manner    of    sale    and   convey- 

ance of  real  estate  of  cer- 
tain consolidated  religious 
societies — Who  must  be 
defendants  in  such  ac- 
tions. 

357.  Publication      of      notice      in 

such    sales. 

358.  Manner     in     which     churches 

generally  may  sell,  ex- 
change or  encumber  real 
estate. 

359.  Kind    of    notice    to    be    given 

when    the    sale    of  church 

property  is  asked  of  the 
court. 

360.  All    sales,    mortgages  or    ex- 

change of  church  prop- 
erty, sold  by  proceeding 
in  court,  to  be  confirmed 
by   court. 

361.  When    real    estate    giwn    to 

certain  charitable  uses 
may  be  sold  by  order  of 
court — Procedure  in  such 
cases. 

362.  Necessary     parties     to     such 

proceeding  —  Partition  of 
church  property. 


Sec.  347.     General  discussion. 

Before  attempting  to  convey  real  estate  belonging  to  any 
religious  society  or  denomination,  it  behooves  the  convey- 
ancer  to  examine  the  statute  of  the  State  on  that  subject.     It 


445 


§  347  MERWINE    ON    REAL    ACTIONS.  446 

is  a  general  proposition,  good  in  this  State,  that  the  real 
estate  of  such  society  can  be  conveyed  only  by  and  under 
the  orders  of  the  court  after  such  society  has  complied  with 
the  statute,  by  first  filing  its  petition  and  giving  the  required 
notice,  either  by  publication  or  by  service  of  summons,  as 
in  other  civil  actions.1 

In  one  instance  the  trustees  of  a  religious  society,  incorpo- 
rated under  the  statute,2  were  authorized  by  a  special  act  of 
the  Legislature3  to  convey  by  deed  the  real  estate  owned  and 
held  by  it  to  a  certain  other  religious  society,  and  said  trustees, 
by  virtue  of  said  act,  by  deed  so  conveyed  said  real  estate. 
It  was  held  that  such  deed,  without  an  order  of  the  court 
in  compliance  with  the  statutory  procedure  in  such  instances, 
is  void  and  of  no  effect.4 

In  all  such  cases  where  real  estate  is  sold  under  statutory 
proceedings,  there  must  be  a  substantial  compliance  with  the 
statute  to  give  purchasers  title,  and  this  is  true  whether  the 
action  be  brought  in  the  court  of  probate  or  chancery  courts.5 

A  careful  reading  of  the  following  requirements  of  the  law 
in  the  procedure  required  in  sale  of  real  estate  belonging  to 
certain  religious  and  other  similar  societies  discloses  that  the 
practitioner  must  exercise  care  in  the  selection  of  the  statute 
under  which  he  brings  his  action,  and  he  must  be  sure  to 
comply  with  each  and  every  substantial  requirement  of  the 
statute  or  purchasers  at  such  sale  will  find  themselves  with- 
out title. 

With  the  forms  as  guides  for  the  preparation  of  the  plead- 
ings, notice  by  publication,  service  of  summons  and  of  orders  of 
the  court,  the  practice  in  such  matters  is  easy.  Each  of  the 
many  provisions  of  the  statute  on  this  subject  in  this  chapter, 
by  proper  use  of  said  forms,  can  be  easily  met  and  complied 
with.  As  in  other  court  deeds  the  deed  in  such  case  should 
recite  all  of  the  court  proceedings  authorizing  the  sale,  ex- 
change or  incumbrance  of  the  real  estate." 

1  Sec    §   2   and   following   section-.  5  Ellwood    v.   Northup,   107   N.  Y. 

2  Gen']     Code,     $  8<>53     (R.     S.     §        172. 

3241'.  e  See    No.    393,    ct    scq.,    for    pro- 

3  93    (i.     I..    4(12.  oedure   in  such  case  from   the  filing 
1  The      South      Kenton,     etc.,     v.        of  the  petition  to  and  including  deed 

Espy,    17   ('.   ('.   524.   said   act  being       to  purchaser. 
unconsi  it  ntional. 


447  SALE    OF    REAL    ESTATE    BY    SOCIETIES.  §  343 

Sec.  348.  Religious  society  may  petition  the  court  for  sale 
of  real  estate  used  ior  cemetery  purposes— Notice  by 
publication  to  be  given— Procedure. 

"When  a   religious   or  educational   corporation   society   holds 
any    land  within   the   limits  of  any   city  or   village   which    has 
been  used  as  a  cemetery,  and  interments  in  which  have  been 
prohibited   by   ordinance   of   such    municipal    corporation,   the 
trustees,  wardens,  vestry,  or  other  officers  entrusted  with  the 
management   of  the   property   of   such   corporation   or  society 
may  file  a  petition  in  the  court  of  common  pleas  of  the  county 
where   such   property   is  situated,  setting  forth   therein   a   de- 
scription of  the  property,  the  existence  of  such  ordinance,  and 
the   names   of   all    persons   holding   burial    privileges   in    such 
cemetery,  so  far  as  known  to  them,  and  if  such  privileges  are 
held  by  persons  whose  names  are  unknown  to  them,  the  facts 
as  to  the  same  are  required  to  be  stated,  and  asking  that  the 
value,   if   any,   of  such   burial   privileges   shall  be   determined 
by  the  court,  and  the  direction  of  the  court  as  to  the  removal 
of  the  bodies  interred  in  such  cemetery  to   other  cemeteries, 
and  for  an  order  to  sell  such  property  free  from  such  burial 
privileges.    Notice  of  the  filing  of  such  petition  must  be  given 
by   publication   in   some   newspaper,   printed   and   of   general 
circulation  in  the  county  where  it  is  filed,  for  four  consecutive 
weeks,  setting  forth  the  object  and  prayer  thereof,  and  that 
any  person  claiming  any  interest  in  the  subject  matter  of  the 
petition,  or  burial  privileges   in   such  cemetery,   may  appear 
and  file   an   answer  therein,  within   six  weeks  from  the  date 
of  the  first  publication  of  such  notice,  and  after  which,  such 
case   shall   stand   for   hearing;    and    if,   upon    a    final    hearing 
of   the   case,   it   shall   be  made  to   appear  that   such   cemetery 
is  as  above  described,  the  court  will  proceed,  with  or  without 
the   aid   of  a  jury,   as   the   parties  appearing   may   elect,   and 
hear  and  determine  the  value,  if  any,  of  such  burial  privileges, 
and  order  that  the  corporation  or  society  shall  pay  any  amount 
so  ascertained  to  the  holder  of  such  privileges,  and  the  court 
may    order    such    cemetery    property    sold,    free    from    such 
burial   privileges,   and   may   direct   a  subdivision   of  the  same 
into  lots  for  the   purpose   of  sale,  and  direct  the  application 
of  the  money  arising  therefrom,  to  such  uses  of  such  corpora- 
tion or  society,  for  pious  or  educational  purposes,  as  the  trus- 
tees, wardens,  vestry  or  other  officers    conceive  to  be  most  for 


§§  349,  350  MERWINE   ON    REAL    ACTIONS.  448 

the  interest  of  the  corporation  or  society  to  which  the  ceme- 
tery so  sold  belonged;  but  such  sale  cannot  be  made  until  the 
bodies  interred  therein  are  removed  to  other  cemeteries,  as 
directed  by  the  court,  on  the  final  hearing  of  the  case;  pro- 
vided, that  any  holder  of  such  burial  privileges  who  may  not 
have  appeared  in  such  proceeding,  and  who  has  not  waived 
his  right  to  receive  compensation  for  same,  may  assert  his 
right  to  receive  from  such  society  or  corporation,  compensa- 
tion therefor,  within  five  years  after  the  final  entry  of  such 
proceeding.7 

Sec.  349.  In  what  cases  certain  churches  or  church  societies 
may  sell  lands. 
When  the  title  of  any  real  estate  is  vested  in  trustees  for 
the  use  of  churches,  or  congregations  of  churches,  and,  owing 
to  the  peculiar  situation  of  such  real  estate,  or  the  nature 
of  the  trust  or  conditions  upon  which  it  is  held,  it  has  not 
been  for  twenty  years  claimed  by  or  appropriated  to  the 
use  of  churches  or  congregations,  as  originally  contemplated, 
and  such  trustees  are  in  doubt  as  to  what  disposition  to  make 
of  such  unappropriated  church  property,  and  when  any  public 
church  site  and  meeting  house  has  been  abandoned  by  the 
public  as  a  place  of  worship,  and  the  trustees  invested  with 
the  title  of  such  property  have  sold  the  same,  and  are  in 
doubt  as  to  what  disposition  to  make  of  the  proceeds  thereof, 
such  trustees  may  file  a  petition  in  the  court  of  common  pleas 
of  the  county  wherein  the  property  is  situated,  setting  forth 
all  the  facts  in  the  case,  and  asking  the  direction  of  the  court 
as  to  the  proper  disposition  of  such  unappropriated  property 
or  proceeds.8 

Sec.  350.     The  kind  of  notice  given  in  such  case  and  the  order 
of  the  court  therein. 

Notice  of  the  filing  of  such  petition  must  be  given  by  pub- 
lication in  some  newspaper  printed  and  of  general  .circulation 
in  the  county  where  such  petition  is  filed,  for  four  consecutive 
weeks,  setting  forth  the  object  and  prayer  thereof,  and  that 
any  person,  church,  or  congregation,  claiming  an  interest  in 
the  subject  matter  of  such  petition,  may  appear  and  file  an 
answer  therein;  and  the  court,  on  final  hearing  of  the  case, 

TCen'l    Code,    §9001,   and   follow-  8  Gen'l    Code,    §  9999     (K.    S.    § 

ing  (R.  S.  §3773).  3774). 


449  SALE   OF    REAL   ESTATE    BY    SOCIETIES.  §§351,352 

is  required  to  make  such  order  or  decree  therein  as  will  best 
secure  the  rights  of  the  churches  or  congregations,  or  persons 
having  an  interest  therein,  and  as  will  best  promote  the  in- 
terests of  religion,  having  regard,  as  near  as  may  be,  to  the 
terms  of  the  original  trust  or  purposes  with  which  such  prop- 
erty or  proceeds  is  charged,  the  costs  of  the  proceeding  to 
be  taxed  as  justice  and  equity  require.9 

Sec.  351.     Procedure  for  sale  of  real  estate  in  certain  cases 
after  certain  church  organizations  have  consolidated. 
When    any   two   or   more    religious    societies,    denominations 
or      ecclesiastical      corporations     in      this      State     hereafter 
unanimously     form     a     union,     or     which     have     heretofore 
unanimously  formed  a  union,  and  have  become  united  or  con- 
solidated under  and  by  virtue   of  any  rules  and  regulations 
of  such  societies,   denominations  or  corporations,   or  laws   of 
this   State,   the   trustees,   deacons,    directors,   or   other   proper 
officers  of  such  new  society,  denomination   or  corporation  may, 
at   the   request  of  a  majority   of   the   members   of   either  of 
such  societies,  denominations   or  corporations,  petition  a  court 
of  common  pleas  of  the  proper  county,  setting  forth  the  fact 
of  such  union,  and  the  court  may,  in  its  discretion,  make  an 
order  requiring  such   officers,   at  the  time   of  such  union,  to 
convey  to  such  new  organization  the  real  estate  owned   and 
held  by  the  parties  to  the  union,  as  the  court  may  direct; 
and  if  any  of  such  officers  refuse  or  neglect  to    obey  such 
order,  the   decree   of  the   court  will  operate   as  such  convey- 
ance;  but   such   order  shall   in   no    case   be   inconsistent   with 
the  original  terms  by  which  said  real  estate  became  vested 
in  or  entrusted  to  the  parties  of  the  union ;  and  in  all  cases 
the  grantors  of  such  real  estate  to  such  parties    or  their  heirs, 
are  to  be  made  parties  to  the  petition,  and  such  grantors  or 
their  heirs  who  make  no  defense  can  not  be  subject  to  the  pay- 
ment of  costs.10 

Sec.  352.     How   notice   of  the  pendency   of  the   petition   in 
such  case  shall  be  given. 

Notice   of  the   pendency  of  the   petition   in  such   instances 
must  be  given  by  publication  in  a  newspaper  published  in  the 

»Gen'l    Code,    §    10000    (R.   S.    §  i»  Gen'l   Code,    §    10008    (R.   S.   § 

3775).  3781). 


§§353,354  MERWINE    ON    REAL    ACTIONS.  450 

county  where  the  petition  is  filed,  for  four  consecutive  weeks, 
setting  forth  the  object  and  prayer  of  the  petition,  and  if  no 
newspaper  is  printed  in  such  county,  publication  must  be 
made  in  the  newspaper  published  nearest  to  such  county.11 

Sec.  353.     When   and  how  real  estate  of  certain  extinct  in- 
corporated religious  societies   may  be  sold. 

When  any  parish,  congregation  or  society  becomes  extinct, 
as  mentioned  in  Gen'l  Code  §§  10013,  10014  (R.  S.  §  3786),  the 
court  of  common  pleas  of  the  county  in  which  any  real  estate  of 
such  extinct  parish,  congregation  or  society  is  situated,  may, 
upon  the  petition  of  the  trustees  of  the  denomination  to  which 
such  extinct  parish,  congregation  or  society  belongs,  make  an 
order  for  the  sale  of  such  property,  whether  the  same  has  been 
built  upon,  or  otherwise  improved,  or  not,  the  proceeds  of  such 
sale  to  go  to,  and  be  for  the  benefit  of  the  denomination  repre- 
sented by  such  trustees,  within  the  territorial  limits  represented 
by  the  body  by  which  they  were  appointed,  and  the  purchaser 
thereof  will  be  vested  with  as  full  and  complete  a  title  to  the 
property  as  the  character  of  the  original  grant  of  such  parish, 
congregation,  or  society  will  allow;  but  the  provisions  of  this 
paragraph  can  not  be  so  construed  as  to  limit,  or  to  any  degree 
restrict  the  powers  conferred  by  the  two  preceding  paragraphs 
upon  such  trustees.1  - 

Sec.  354.     Duties   of   trustees   of   extinct   parishes   and   their 
duties  as  to  moneys  received  from  sale  of  property. 
All   money    derived   from   the   sale    of   any    property    under 
the    provisions    of    original    section    and    Gen'l    Code,    §  10015 
(R.    S.    §3787),  must   be   placed    in    the    custody   of   the    trus- 
tees  of   the    presbytery,    synod,    conference,    diocese     or   other 
ecclesiastical    body   having   jurisdiction   Avithin    the   territorial 
limits  in  which  said  property  may  be  located,  and  they  are  re- 
quired to  hold  the  same  in  trust  for  a  period  of  ten  years,  or 
for  such  period  as  may  be  prescribed  by  law  of  the  denomina- 
tion.      If    within    that    time    another   parish,    congregation    or 
society  of  the  same  denomination  shall  be  organized  in  the  same 
locality,  then  the  court  authorizing  the  sale  of  said  property, 
may.  upon  proper  application  and  evidence,  authorize  the  return 

nGcn'l    Code,    §    10009    (R.   S.    §  i=Gen'l    Code,    §   10015    (R.    S.    § 

3782).  3787). 


451  ;....::  op  real  estate  by  societies.        §§355,356 

of  said  money  to  the  trustees  of  the  new  organization.  Other- 
wise, such  money  shall  become  a  part  of  the  funds  of  the  pres- 
bytery, synod,  conference,  diocese  or  other  ecclesiastical  body 
having  jurisdiction.13 


Sec.  355.  Who  are  to  be  made  parties  to  proceedings  for 
the  sale  of  such  property. 

When  a  petition  is  filed,  as  provided  for  in  the  last  preced- 
ing section,  all  persons  who  may  have  a  vested,  contingent. 
or  reversionary  interest  in  such  real  estate,  must  be  made 
parties  thereto,  and  be  notified  of  the  filing  and  pendency 
thereof,  in  the  manner  provided  by  law  in  cases  of  the  parti- 
tion of  real  estate;  but  the  court  may  make  such  order  as 
to  costs  as  may  be  deemed  just  and  proper.14 

Sec.  356.  Manner  of  sale  and  conveyance  of  real  estate  of 
certain  consolidated  religious  societies — Who  must  be 
defendants  in  such  actions. 

The  united  corporations  15  may  at  the  request  of  a  majority 
of  its  members,  or  by  act  of  its  trustees,  directors,  or  other 
governing  body  in  its  corporate  name,  petition  the  court 
of  common  pleas  of  the  proper  county,  setting  forth  the  fact 
of  such  union,  and  the  court  may,  in  its  discretion,  make  an 
order  requiring  such  officers  to  convey  to  such  new  corpora- 
tion the  real  estate  owned  and  held  by  the  parties  to  the 
union,  as  the  court  may  direct,  and,  if  any  of  such  officers 
refuse  or  neglect  to  obey  such  order,  the  decree  of  the  court 
will  operate  to  serve  as  such  conveyance,  but  such  order  can 
in  no  case  be  inconsistent  with  the  original  terms  under  which 
said  real  estate  became  vested  in,  or  entrusted  to,  the  parties 
to  the  union;  and  in  all  cases  the  grantors  of  such  real  estate, 
to  such  parties,  or  their  heirs,  or  such  other  parties  as  the 
petitioners  may  deem  advisable,  may  be  made  defendants  to 
such  petition  and  such  of  the  defendants  who  make  no  de- 
fense can  not  be  subjected  to  costs.10 

"Gen'l  Code,  §  10016  ( R.  S.  §  3793a)  and  following  sections  of 
3787a).  the    statute. 

n  Gen'l    Code,    §   10017    ( R.   S.    §  i«  Gen'l    Code,    §10048     (R.    S.    § 

3788).  3793i);     see     also     Gen'l     Code     § 

is  Gen'l    Code,    §   10038    (R.    S.    §        10038,   etc.    ( R.    S.    §  3703   -a-b-c-d- 

e-f-g  and  h ) . 


§§357,358  MERWINE    ON    REAL    ACTIONS.  452 

Sec.  357.     Publication  of  notice  in  such  sales. 

Notice  of  the  pendency  of  such  petition  must  be  given  by 
publication  in  a  newspaper  published  in  the  county  where  the 
petition  is  filed  for  four  consecutive  weeks,  setting  forth  the 
object  and  prayer  of  the  petition,  and  if  no  newspaper  is 
printed  in  such  county,  publication  then  must  be  made  in  the 
newspaper  published  nearest  to  such  county.17 

Sec.  358.     Manner  in  which  churches  generally  may  sell,  ex- 
change or  encumber  real  estate. 

"When  any  charitable  or  religious  society  or  association  de- 
sires to  sell,  exchange  or  encumber  by  mortgage  or  other- 
wise, any  real  estate  now  or  hereafter  owned  by  it,  or  held 
in  trust  by  it  for  any  specified  religious  or  charitable  purpose 
or  held  for  its  use  or  benefit  by  the  trustees  either  chosen 
by  it  or  otherwise  constituted,  for  any  such  religious  or 
charitable  purpose,  except  grounds  used  or  occupied  as  burial 
places  for  the  dead,  the  trustees,  wardens,  and  vestry  or 
other  officers  entrusted  with  the  management  of  the  affairs 
of  such  society  or  association  or  holding  the  title  to  such  prop- 
erty, or  such  society  or  association  itself,  if  it  be  incorporated 
under  any  law  of  this  State,  may  file  in  the  court  of  common 
pleas  of  the  county  in  which  said  real  estate  is  situate,  a 
petition  stating  how  and  by  whom  the  title  thereto  is  held, 
that  such  society  or  association  desires  to  make  such  sale, 
exchange  or  encumbrance,  and  setting  forth  the  object  of 
the  same;  and  if  upon  the  hearing  of  such  case,  it  appears 
that  such  sale,  exchange  or  encumbrance  is  desired  by  the 
members  of  the  society  or  association,  and  that  it  is  right 
and  proper  that  authority  be  given  to  accomplish  the  same, 
the  court  may  authorize  the  trustees  or  other  officers  of  such 
society  or  association,  or  if  incorporated  as  aforesaid,  the 
society  or  the  association  itself,  to  sell,  exchange  or  encumber 
such  real  estate  in  accordance  with  the  prayer  of  such  peti- 
tion and  upon  such  terms  as  the  court  may  deem  reasonable; 
and  in  case  the  title  thereto  is  held  for  the  use  or  benefit 
of  such  society  or  association  by  the  trustees,  all  or  a  ma- 
jority of  whom  are  not  chosen  thereby  but  otherwise  consti- 
tuted, and  who  refuse,  upon  request  of  such  society  or  asso- 

iTfion'l    Code,    §   10049    (R.    S.    §  3793J). 


453  SALE    OF    REAL   ESTATE    BY    SOCIETIES.  §§  359-361 

eiation,  or  its  duly  elected  trustees,  wardens,  and  vestry  or 
other  officers,  to  file  such  petition,  the  court  upon  the  petition 
of  such  society  or  association,  or  its  duly  elected  trustees  or 
other  officers  aforesaid,  may  require  said  trustees  holding 
such  title  to  convey  or  encumber  such  real  estate  in  accord- 
ance with  the  prayer  of  the  petition  and  upon  such  terms 
as  may  be  deemed  reasonable;  provided,  that  all  trustees 
holding  title  as  aforesaid  and  refusing  to  file  or  join  in  such 
petition  are  required  to  be  made  defendants  therein  and  be 
served  with  summons  as  in  a  civil  action.18 

Sec.  359.  Kind  of  notice  to  be  given  when  the  sale  of  church 
property  is  asked  of  the  court. 

The  petitioners  shall  cause  notice  of  the  pendency  and 
prayer  of  the  petition  to  be  published  in  some  newspaper  of 
general  circulation  in  the  county  where  the  real  estate 
proposed  to  be  sold,  exchanged  or  encumbered  is  situate,  for 
four  consecutive  weeks,  before  the  said  application  is  to 
be  heard.19 

Sec.  360.  All  sales,  mortgages  or  exchange  of  church  prop- 
erty, sold  by  proceeding  in  court,  to  be  confirmed  by 
court. 

The  trustees  or  other  officers  of  such  religious  society,  au- 
thorized to  make  such  sale,  exchange  or  encumbrance,  are 
required  to  make  return  thereof  to  the  court  ordering  the  same 
at  such  time  as  the  court  may  order,  and  thereupon,  if  the 
court  is  satisfied  that  the  same  has  been  made  in  all  respects 
according  to  its  order,  the  court  must  approve  the  same,  and 
must  order  that  the  proceeds  be  invested  in  other  real  estate 
for  the  use  of  such  society,  used  in  the  payments  of  its  deb  is, 
or  otherwise  invested  or  disposed  of  according  to  the  prayer 
of  said  petition.20 

Sec.  361.     When  real  estate  given  to  certain  charitable  uses 

may  be  sold  by  order  of  court— Procedure  in  such  cases. 

When  any  real  estate,  except  burial  grounds  or  a  cemetery, 

has  been   donated,  bequeathed,   or  otherwise  entrusted   to,   <>r 

isGen'l    Codo.    §   10051     (R.    S.    §  19  Gen']   Code,    §   10032    (B     P.    § 

3794).      See  No.   202   and  following  3795). 

for  all   forms  of  procedure  in  such  20  Qen'l   Code,    §   10056    (R.    S.    § 

action      to      encumber      such      real  379G) 
estate. 


§  362  MERWINE    ON    REAL    ACTIONS.  454 

purchased  by,  any  person  or  trustee,  for  any  public  religious 
use,  but  not  to  or  for  the  use  of  any  specitic  or  particular  re- 
ligious society  or  denomination,  or  when  the  same  has  been 
donated,  bequeathed  or  entrusted  to,  or  purchased  by,  a  par- 
ticular religious  society  or  denomination,  and  has  been  aban- 
doned for  such  use,  the  court  of  common  pleas  of  the  county 
in  which  the  same  is  located  may  upon  good  causes  shown, 
upon  the  petition  of  any  citizen  of  the  vicinity,  make  an  order 
for  the  sale  of  such  property,  whether  the  same  has  been 
built  upon  or  otherwise  improved  or  not,  and  may  make  such 
order  as  to  costs,  and  such  disposition  of  the  proceeds  of  the 
sale  to  such  religious  or  other  public  use  as  may  be  just, 
proper  and  equitable,  and  the  purchaser  thereof  will  be  in- 
vested with  as  full  and  complete  a  title  thereto  as  the 
character  of  the  original  grant  for  such  religious  use 
will  allow.21 

Sec.  362.  Necessary  parties  to  such  proceeding — Partition  of 
church  property. 

All  persons  who  have  a  vested,  contingent  or  reversionary 
interest  in  such  real  estate,  and  the  trustees  or  other  tem- 
poral officers  of  any  religious  society  then  using  the  same, 
must  be  made  parties  to  the  petition  and  be  notified  of  the 
filing  and  pendency  thereof  as  in  a  civil  action. -- 

Under  the  subject  of  partition  of  real  estate,  in  another 
part  of  this  work,  will  be  found  the  law  regulating  and  con- 
trolling the  partition  of  certain  church  properties. 

ziGetfl    Code,    §   11936    (R.    S.    §  22  Gen'l    Code,    §   11937    (R.   S.    § 

5812).  5813). 


FORMS. 


PROCEDURE  FOR  SALE,  EXCHANGE  OR  ENCUMBRANCE 
OF  CHURCH  PROPERTY. 


Forms. 

29G.     Petition  for  sale  or  exchange 
of    church   properties. 

Legal  notice  and  proof  of 
publication. 

Order  of  court  authorizing 
sale  and  exchange  of  real 
estate. 

Report  of  sale  an'1  exchange 
of    real    estate   by  church. 

Order  of  court  confirming 
exchange  and  ordering 
deeds   to   be    made. 

Form  for  church  deed  in  ex- 
change  of   real   estate. 


207. 


298. 


299. 


300. 


301. 


Forms. 

302.  Petition   asking   for    sale    and 

encumbrance  of  church 
property. 

303.  Publication     of      notice     and 

proof  of  same. 

304.  Decree    of    court    authorizing 

mortgage  of  part  and  sale 
of  part  of  lx-nl  estate  of 
church. 

305.  Confirmation      of      sale      and 

mortgage  of   real   estate. 

306.  Form    for    deed    in    such    in- 

stance. 


No.  296.     Petition 


Court  of  Common  Pteas, 


County.  Ohio. 


In  the  matter  of  the  conveyance  of  certain  real 
estate  of  the  of  ,  Ohio,  a  re- 
ligious society  incorporated  under  the  laws 
of  the  State  of  Ohio. 

Petition. 

Your  petitioners,  A.  W.  P.,  W.  L.  W.,  C.  E.  R,  T.  B.  S.,  O.  C  H., 

J    F     R.   and  E.  A.  H.,  all  of  the  city  of  ,  Ohio,  respectfully 

represent  to  the  court  that  they  are  duly  elected,  qualified  and  acting 

„  r™ rhurch  of  Ohio;   that  said 

trustees  of  Tne L,nuicn  oi 

church  is  a  religious  society  duly  incorporated  and  organized  under 
an  act  of  the  General  Assembly  of  the  State  of  Ohio,  which  passed  and 
took  effect  on  the day  of ,  A.  D.  18-,  and  was  and  is  pub- 
lished in  Vol.  of  the  laws  of  said  State  on  pages  and  . 

By  said  act  of  incorporation  said  religious  society  is  made  capable  of 
holding  property,  real,  personal  and  mixed,  either  by  purchase,  gift, 
grant  "devise  or  legacy,  and  may  sell,  loan,  dispose  of  or  convey  the 
same '  and  the  property  and  other  concerns  of  said  corporation  placed 
under  the  management  and  control  of  trustees  of  said  corporation  ap- 
455 


MERW1NE    ON    REAL    ACTIONS.  456 

pointed  for  that  purpose;  that  said  petitioners  are  intrusted  with  the 
management  of  the  affairs  of  said  religious  society. 

Said  church  society  and  incorporation  is   the  owner  in  fee  simple 

cf  the  following  described  real  estate  situated  in  the  county  of , 

State  of  ,  and  in  the  city  of  ,  to-wit: 

(Here  insert  description  of  real  estate.) 

The  church  edifice  used  and  occupied  by  said  church  stands  on  said 
premises,  and  said  premises  are  wholly  occupied  thereby,  and  no  part 
of  the  same  is   used  or  occupied  as  burial  places  for  the  dead.     The 

said  church  or  society  received  title  to  said  premises  on  the  day 

of  ,  18 ,  by  deed,  from to  the  Church  of 

,  Ohio,  and  has  so  held  the  title  thereto  ever  since. 

Said  church  society  desires  to  exchange,  sell  and  convey  said  prem- 
ises to  the  Church  of ,  Ohio,  a  religious  society  duly 

incorporated  and  organized/ under  the  laws  of  Ohio;  and  on  the  

day  of  ,  A.   D.  18—^/  the  said  trustees  of  said  Church 

were  duly  authorized  by  the  action,  vote  and  consent  of  the  members 
of  said  society  to  exchange,  sell  and  convey  said  premises  by  a  good 

and  sufficient  deed  of  general  warranty  in  fee  simple  to  said  

Church  of  ,  Ohio,  which  then  was  and  still  is  a  religious  so- 
ciety duly  incorporated  under  the  laws  of  Ohio,  for  the  consideration 

that  said Church   convey  by   a   good  and    sufficient   deed   of 

general  warranty  in  fee  simple  to  said  Church  of  , 

Ohio,  the  following  real  estate  owned  by  said  .Church,  de- 
scribed as   follows:    Situated   in   the  county  of  ,  in  the  State 

of  Ohio,  and  in  the  city  of  ,  being   (here  insert  description  of 

real  estate),  and  on  which  said  piece  of  ground  is  situated  the  church 

edifice    of    said   Church;    and    on    the    further    consideration 

that  said  Church  also  execute  and  deliver  to  said  

Church    a   mortgage   on   said   premises   first   described   herein    for  the 

sum   of  5 ,   due  and   payable  years  after   the day 

of  ,  19 ,  with  interest  at  six  per  cent,  per  annum  payable 

semi-annually. 

The  object  and   purpose  of   said  Church    in   making   said 

exchange,  sale  and  conveyance  of  its  said  property  is  to  procure  with 
the  proceeds  arising  from  such  exchange  and  sale  a  more  desirable 
and  suitable  site,  location  and  church  edifice  for  its  said  society,  and 

it    has   an    opportunity    and    offer    of   turning   said    $ mortgage 

as  a  cish  payment  at  its  face  value  on  the  purchase  price  of  a  desirable 

and  suitable  lot  of  ground  on  Street,  in  said  city,  on  which 

said  society  proposes  to  erect  a  new  church  edifice.  The  said  prop- 
erty   of    said    '■ Church,    so    to    be    conveyed    to    said    

Church   is  suitable   for  business  purposes  and  is  salable  property,  and 

it   I  purpose   of  said  Church   to  convert  the   same   into 

as  speedily  as  possible;  the  same  to  be  used  toward  the  pur- 
chase of   said    new  church  site  and   the   erection   of  said   new   church 

Therefore,  your  petitioners  say  that  the  best  interests  of  said  re- 
ligious  society   which  they   represent  will   be  served   by  making  such 


457  FORMS. 

exchange,  sale  and  conveyance,  and  they  pray  for  an  order  of  this 
court  authorizing  them  to  exchange,  sell  and  convey  said  premises  in 
manner  and  form  aforesaid  and  to  the  party  aforesaid,  and  for  all 
suitable  and  further  relief  as  the  nature  of  the  case  may  require. 

Attorney  for  Petitioners. 
State  of  Ohio,  County,  ss.: 

A.  W.  F.,  one  of  the  above  named   trustees  of  said  The  

Church  of  Ohio,  being  duly  authorized  in  the  premises,  says 

that  the  facts  stated  and  allegations  contained  in  the  foregoing  peti- 
tion are  true  as  he  verily  believes.  A.  W.   F. 

Sworn  to  before  me  and  subscribed  in  my  presence  by  the  said 
A.  W.  F..  this  day  of  ,  A.  D.  19 . 


Notary  Public,  County,  Ohio. 

No.  297.    Legal  notice  and  proof  of  publication. 

Notice  is  hereby  given  to  the  officers  and  members  of  the  

Church  of  ,  Ohio,  and   to  the  officers  and  members 

of  the  Church   of  ,   Ohio,   and   to   all   others    whom 

it  may  concern,  that  on  the  day   of ,  A.   D.   19         , 

the   trustees   of   the  Church   of   ,   Ohio,   filed   in   the 

court  of  common  pleas   of  County,   Ohio,   in    case   No.   , 

their    certain    petition    praying    the    court    for    an    order    giving    them 

authority  to  exchange,  sell  and  convey  in  fee  simple  to  said  

Church  of  ,  Ohio,  the  following  described  real  estate  situated 

in    the    county    of   ,    in    the    State    of    Ohio    and    in    the    city 

of  to-wit:      (Here  insert  description  of  property),  on  which 

premises  stands  the  church  edifice  used  and  occupied  by  said  

Church. 

Said  petition  and  cause  will  be  heard  on  ,  the  — —  day  of 

,  A.  D.  19 ,  or  as  soon  thereafter  as  may  be. 

(Here  must  appear  signatures  of  trustees.) 

Petitioners. 


-,    Attorney. 


State  of  Ohio,  County,  ss.: 

i,    G.   W.    D.,    being   duly    sworn,    depose    and    say    that    the    legil 
notice  of  which  a  true  copy  is  hereunto  annexed,  was  published  four 

times   (insert  dates  of  publication)  and  immediately  prior  to  the  

day  of  >  a.  D.  19 ,  the  day  of  hearing  therein  mentioned, 

in   the  ,   a  daily   newspaper   printed  -in   the   city   of  , 

County  of  - State  of  Ohio,  and  of  general  circulation  therein. 

G.    W.    D. 


Sworn  to  before  me  and  subscribed  in  my  presence,  this 
day  of  ,  19- 


Notary  Public  in  and  for  County,  Ohio. 

(Seal.) 


MERWINE   ON    REAL    ACTIONS.  458 

No.  298.     Order  of  court  authorizing  sale  and  exchange  of 
real  estate. 

Court  of  Common  Pleas,  County,  Ohio. 

In   the  matter  of  the  conveyance  of  certain   real 

estate  of  the  Church  of  ,  Ohio, 

a  religious  society  incorporated  under  the  laws 

of  Ohio.  No.  . 

Entby. 

This  day  came  the  petitioners,  by  their  counsel,  & , 

and  thereupon  this  cause  came  on  for  hearing  upon  the  petition  and 
the  evidence,  and  was  argued  by  counsel  and  submitted  to  the  court,  on 
consideration  whereof  the  court  being  fully  advised  in  the  premises, 
finds  that  the  petitioners  have  given  due  legal  notice  of  the  pendency 
and  prayer  of  said  petition  by  causing  notice  thereof  to  be  published 

in  the  ,  a  newspaper  of  general  circulation  in County, 

Chio,  where  said  real  estate  is  situate,  for  four  (4)  consecutive  weeks, 
commencing  on  the  day  of  ,  19 — ,  prior  to  this  hear- 
ing, and  the  court  further  finds  from  the  evidence  that  the  properties 
which   are   sought   to   be   exchanged,   sold   and   conveyed,    described   in 

the    petition:       Situate    in    the    county    of ,    State    of 

Ohio,   and   in   the   city   of  ,   to-wit:       (Here   insert   description 

of  real   estate)    are   owned    in   fee   simple  by   the  Church   of 

,    Ohio,    for    religious    purposes;    that    said    church    is    a    duly 

incorporated  religious  society  under  the  laws  of  Ohio;  that  said 
premises  are  not  used  or  occupied  as  burial  places  for  the  dead,  and 
that  A.  W.  F.,  C.  E.  R.,  T.  B.  S.,  O.  C.  H.,  F.  J.  R.  and  E.  A.  H.  are 
the  duly  elected,  qualified  and  acting  trustees  of  said  religious  society, 
and  are  intrusted  with  the  management  of  the  affairs  of  said  society. 

The  court  further  finals  that  it  is  desired  by  the  members  of  said 
religious   society,   represented   by   the   petitioners  herein,   to   exchange, 

sell   and    convey    said    premises   to   the   Church   of , 

Ohio,  a  religious  society  duly  incorporated  under  the  laws  of  the  State 

of  Ohio,    for   the   consideration   that   said   Church   convey    to 

the  said  Church  the  following  real  estate,  owned  by  the  said 

Church  and  described  as  follows:  (Here  insert  descrip- 
tion of  said  real  estate),  and  on  which  said  piece  of  ground  is  situ- 
ated the  church  edifice  of  said  ;  and  on  the  further  consid- 
eration   that   said   Church    also   execute   and    deliver   to   said 

Church  a  mortgage  on   said   premises  first  described  herein, 


for  the  sum  of  $ ,  due  and  payable years  after  the  

day  of  ,  10 ,  with  interest  at  per  cent,  per  annum,  in- 
terest payable  semi-annually. 

The  court  further  finds  that  the  object  and  purpose  of  said 

Church  in  making  said  exchange,  sale  and  conveyance  of  its  said 
property  is  to  procure  with  the  nroceeds  arising  from  such  exchange 
and  conveyance  a  more  desirable  and  suitable  s'te,  location  and 
church   edifice  for   its  said   society,  and   to  apply   said    $ mort- 


459  FORMS. 

gage  as  a  cash  payment  at  its  face  value  on  the  purchase  price  of  a 

desirable  and  suitable  lot  of  ground  on  Street  in   said  city; 

that  the  said  property  of  the  said  Church,  so  to  be  conveyed 

to  said  Church  in  exchange,  is  suitable  for  business  pur- 
poses, and  is  salable  property,  and  it  is  the  purpose  of  said  

Church  to  convert  the  same  into  money  as  speedily  as  possible,  the 
same  to  be  used  toward  the  purchase  of  said  new  church  site  and 
the  erection  of  a  new  church  edifice. 

The  court  further  finds  that  it  will  be  for  the  best  interests  of  the 
said  Church  of  ,  Ohio,  so  to  exchange,  sell  and  con- 
vey its  said  premises  in  accordance  with  the  prayer  of  said  petition. 

Now,  therefore,   it    is  ordered,  adjudged  and   decreed  by  the  court 

that   the   said   trustees   of   the   Church   of  ,   Ohio,   be 

and  they  are  hereby  authorized  to  convey  to  said  religious  society  the 

Church    of   ,    Ohio,    the    premises    mentioned    in    the 

petition,    described    as    follows,    to-wit:       Situated    in    the    county    of 

,   State  of  Ohio,  and   in   the   city   of  (   to-wit:      (Here 

insert  description  of  real  estate),  and  on  which  said  piece  of  ground 
is   situated  the   church   edifice   of  said   Church 

And    it    is    further    ordered    by    the    court    that    the    said    

Church    of    ,    Ohio,    make,    execute    and    deliver    to    the    said 

Church  of  ,  Ohio,  the  said   mortgage  of  $ on 

the  said  premises  first  hereinabove  described,  due  and  payable 

years  after  the  day  of ,  19 — ,  with  interest  at  per 

cent.,   payable   annually,    and    that   said   Church   accept 

said  mortgage  from  the  said Church  as  a  part  of  the  con- 
sideration   for   said    exchange. 

It  is  further  ordered  that  an  order  issue  therefor  to  the  said 
trustees  of  said  Church  according  to  law,  ordering  and  di- 
recting them,  in  behalf  of  said  society,  to  exchange,  sell  and  convey 
its  said  premises  as  herein  ordered  and  to  make  return  thereof  to  this 
court  for  further  order. 

No.  299.     Report  of  sale  and  exchange  by  church. 

Report   of    Sale. 

Now  come  A.  W.  P.,  W.  L.  W.,  C.  E.  R.,  T.  B.  S.,  O.  C.  H.,  J.   F.  R. 

and  E.  A.    H.,  as  trustees  of  Church  of  ,  Ohio,  and 

repcrt   to   the   court  that   as   such   trustees   they   have   exchanged   and 

sold  to  the  Church  of  ,  Ohio,  under  the  former  order 

of  this  court,  made  ,  ,   19 — ,  the  following  described 

real  estate  of  the  said  Church  of  ,  Ohio,  situated  in 

the  county  of  ,  State  of  Ohio,  and  in  the  city  of  ,  to- 
wit:  (Here  insert  description  of  real  estate),  for  the  consideration 
and  price  and  upon  the  terms  following,  to-wit: 

The  Church  of ,  Ohio,  the  purchaser,  is  to  convey 

to  the  said  Church  of  ,  Ohio,  the  following  described 

premises  situate  in  the  county  of  ,  in  the  State  of  Ohio,  and 

in   the   city   of  ,   to-wit:         (Here    insert    description    of    real 


MERWINE   ON    REAL    ACTIONS.  460 

estate),  and  also  execute  and  deliver  to  the  said  Church  of 

t    Ohio,    a   mortgage   on    the    said   premises    first   hereinabove 

described,  for  the  sum  of  $ ,  due  and  payable  years  after 

the day  of  ,  19 ,  with  interest  at  per  cent,  per 

annum,   interest   payable  — .  A.   W.   F., 

Chairman  of  the  Board  of  Trustees  of 
the  - Church  of  ,  Ohio. 

No.  300.     Order  of  court  confirming  exchange  and  ordering 

deeds  to  be  made. 

This  day  this  cause  came  on  to  be  heard  on  the  report  of  A.  W.  F., 

et  al,  as  trustees  of  the  Church   of  ,  Ohio,   of   the 

exchange  and  sale  by  them  of  certain   real   estate  described  therein, 

belonging  to   said  church,  to  the  Church  of  ,  Ohio, 

under  the  lormer  order  of  this  court,  made  on  the  day  of  , 

19 ,  and  on  the  motion  of  said  trustees  to  confirm  the  same,  and 

on  consideration  thereof  the  court  finds  that  said  exchange  and  sale 
of  said  real  estate  by  said  trustees  as  aforesaid,  is  in  all  respects  reg- 
ular and  correct  and  according  to  law  and  the  former  orders  of  this 
court,  and  it  is  therefore  ordered  that  said  exchange  and  sale  of  said 
real  estate  be,  and  the  same  is  hereby  ratified  and  confirmed,  and 
said   trustees   are  ordered   and   directed   to  make,   execute  and   deliver 

to  the  Church  of  ,  Ohio,  a  deed   for  said   premises, 

according  to  law,  upon  said Church  executing  and  delivering 

to  said  trustees  a  deed  conveying  to  said  Church,  the  follow- 
ing  described    premises   situate    in    the    county    of   ,    State    of 

Ohio,    and    in    the    city   of   ,    (here    insert    description    of    real 

estate),  also  executing  and  delivering  to  said  trustees  a  mortgage  for 

the  sum  of  $ on   said  premises  so  conveyed  to  said  

Church,  with  interest  thereon  from  the  day  of  ,  19 ,  at 

per  cent,  per  annum,  payable  . 

No.  301.     Form  for  church  deed. 

Know   all  Men  by   These  Presents,   that 

Whereas,  On  the  day   of  ,   19—,   A.   W.   F.,  W.  L.   W., 

C.  E.  R.,  T.  B.  S.,  O.  C.   H.,  J.  F.   R.    and  E.  A.  H.,  all  of  , 

Ohio,  the  then  duly  elected,  qualified  and  acting  trustees  of  the  

Church  of  ,   Ohio,   a   religious   society   duly   incorporated   and 

organized  under  the  laws  of  Ohio,  filed  in  the  court  of  common  pleas 
of  County,  Ohio,  in  case  No.  — ,  in  said  court,  their  peti- 
tion, praying,  among  other  things,  for  an  order  of  said  court  author- 
izing and  directing  them  as  such  trustees,  to  exchange,  sell  and  con- 
vey the  premises  hereinafter  described,  belonging  to  said    the  

Church  of  -        ,  Ohio,  to  the Church  of  ,  Ohio, 

a  religious  society  duly  incorporated  and  organized  under  the  laws 
of  Ohio;    and 

Whereas,  Afterward,  on  the  day  of  ,  19—,  said  case 

came    on    to    be    heard    upon    said    petition,    and    upon    consideration 


461  FORMS. 

thereof,  and  the  court  being  duly  advised  in  the  premises,  found 
that  the  said  petitioners  had  given  due  and  legal  notice  of  the 
pendency   and    prayer   of    said    petition    by    causing   notice    thereof    to 

be  published  in  the ,  a   newspaper   of   general   circulation   in 

County,  Ohio,  where  said  real  estate  is  situated;    and 

Whereas,   Such  proceedings   were  had   in   said   action   that  by   the 

consideration  of  said  court,  at  the  — term  thereof,  ,  19 — , 

and  on  the  day  of ,  19 — ,  said  court  ordered,  adjudged 

and  decreed  that  said  trustees  of  the  said  Church  of , 

Ohio,  convey  to  the  said  Church  of ,  Ohio,  the  prem- 
ises hereinafter  described. 

Whereas,   Afterward,   on   the  day   of  ,    19 — ,    the 

said  trustees  filed  herein  their  report  of  exchange  and  sale  of  said 
premises  to  the  said  Church  of  ,  Ohio,  and  on  con- 
sideration whereof  the  court  found  said  exchange  and  sale  of  said 
premises  to  be  in  all  respects  regular  and  correct  and  according  to 
law  and  the  former  orders  of  said  court  and  confirmed  and  ratified 
said  exchange  and  sale,  and  ordered  said  trustees,  on  behalf  of  said 

Church  of  ,   Ohio,   to  make,  execute  and   deliver  to 

the  said  Church  of  ,  Ohio,  a  deed  for  said  premises 

according  to  law. 

Now,  Kxow  ye  Therefore,  That  the  Church  of  , 

Ohio,  by  A.  W.  F.,  W.  L.  W.,  C.  E.  S.,  T.  B.  S.,  O.  C.  H.,  J.  F.  R.  and 
E.  A.  H.,  as  trustees  thereof,  by  virtue  of  said  order  of  said  court 
and   of   the   statute    in    such   cases    made   and   provided,   and    for  and 

in  consideration  of  the  sum  of  $ ,  secured  to  be  paid  and  tor  and 

in  consideration  of  the  exchange  of  real  estate  as  provided  in  said 
orders  of  said  court,  does  hereby  grant,  bargain,  sell  and  convey  unto 

the  said  Church  of  ,  Ohio,  its  successors  and  assigns 

forever,  the  following  real  estate,  situated  in  the  county  of  , 

in  the  State  of  Ohio,  and   in  the  city  of  ,   and  bounded  and 

described  as  follows:  (Here  describe  real  estate),  together  with  all 
the    privileges    and    appurtenances    thereunto    belonging,    and    all    the 

right,  title  and  interest  of  said  Church  of  ,  Ohio,  in 

and  to  the  same. 

To  Have  and  to  Hold  the  premises  aforesaid  unto  the  said  Church 
of  ,  Ohio,  its  successors  and  assigns  forever,  and  the  said  the 

Church  of  ,  Ohio,  by  A.  W.  F.,  W.  L.  W.,  C.  E.  R., 

T.  B.  S.,  0.  C.  H.,  J.    F.   R.    and  E.  A.  H.,  as  such  trustees,  for  the 

said   Church   of   ,   Ohio,    its   successors    and   assigns, 

does    hereby    covenant    with    the    said    Church    of    , 

Ohio,  its  successors  and  assigns,  that  said Church  of  , 

is  lawfully  seized  of  the  premises  aforesaid,  that  said  premises  are 
free  and  clear  from  all  encumbrances  whatsoever,  except  the  unpaid 
balance  of  the  street  assessment  on  said  premises  for  the  improve- 
ment of  Street,  and  that  said  Church  of  , 

Ohio,  will  forever  warrant  and  defend  the  same  with  the  appurtenances 

unco  the  said  Chui'ch,  its  successors  and  assigns  against  the 

lawful  claims  of  all  persons  whomsoever,  except  as  before  mentioned. 


MERWINE   ON    REAL   ACTIONS.  462 

In  Witness  Whereof  the  saxd   ths  Church  of 


Ohio,  at  the  time  caused  these  presents  to  be  signed,  executed,  ac- 
knowledged and  delivered  in  its  name  and  behalf  by  A.  W.  F.,  W.  L. 
W.,  C.  E.  R.,  T.  B.  S.,  O.  C.  H.,  J.  F.  R.  and  E.  A.  H.,  as  the  trustees 
thereof,  this  day  of  ,  19 . 


Signed  and  acknowledged  in  the  presence  of 


State  of  Ohio,  County,  ss.: 

Be  It  Remembered,  That  on  the day  of ,  A.  D.  19—. 

before    me,   the   subscriber,    a   notary    public    in   and    for   said   county, 
personally  came  the  above  named  A.  W.  F.,  C.  E.  R.,  W.  L.  W.,  T.  B.  S., 

O.  C.  H.,  J.  F.  R.  and  E.  A.  H.,  as  trustees  of  the  Church  of 

,  Ohio,  the  grantors  in  the  foregoing  deed,  and  acknowledged 

the  signing  and  sealing  of  the  same  on  behalf  of  said  Church 

of  ,  Ohio,  to  be  the  voluntary  act  and  deed  of  said  

Church    of   ■ ,    Ohio,    for    the    uses    and    purposes    therein    men- 
tioned. 

In  Testimony  Whereof,  I   have  hereunto  subscribed  my  name  and 
affixed  my  official  seal  on  the  day  and  year  last  aforesaid. 


Notary  Public,  County,  0. 

Procedure  in  Case  Sale  and  Mortgage  of  Church  Property 

is  Asked. 

Court  of  Common  Pleas, County,  Ohio. 

In  the  matter  of  the  application  of  the  Trustees 

of  The  Church  of  ,  Ohio, 

to  mortgage  and  sell  real  estate.  Ex  parte.  No.  


No.  302.     Petition. 

The   undersigned,   trustees   and   officers   of  the  Church   of 

Ohio,    respectfully    represent    that    the    said    church    is    ths 


owner  in   fee  simple    of  the   following  described   real   estate,   situated 

in  the  County  of  ,  State  of  ,  and  city  of  ,  to- 

wit:      (Here    insert   description   of    real   estate). 

Petitioners    further    represent    that    in    order   to    secure   the    rioney 
necessary   to   pay   certain   outstanding  obligations   of   said   church,   the 

officers   and    certain    members    of    said    church    on    the   day    of 

19 — t  executed  and   delivered    their   promissory   note  for  the 


463  FORMS. 

sum  of  dollars,  payable  to  the  order  of  ,  in  

days  after  the  date  thereof,  with  interest  from  date;  that  at  a  regu- 
lar meeting  of  the  officers  of  said  church,  it  was  decided  to  build  a 
parsonage  on  said  premises;  and  that  in  order  to  pay  said  indebted- 
ness and  pay  for  the  building  of  said  parsonage,  it  would  be  for  the 
best  interests  of  said  church  to  sell  the  following  parcel  of  said  real 
estate,  to-wit:  (Here  insert  description  of  parcel  to  be  sold),  and  to 
mortgage  for  a  period  not  less  than  three  years,  the  following  parcel 
of  said  real  estate,  to-wit:  (Here  insert  description  of  real  estate  to 
be  mortgaged). 

Petitioners  further  represent  that  the  members  and  officers  of 
said  church  desire  to  sell  the  aforesaid  real  estate  and  encumber 
by  mortgage  as  aforesaid,  the  parcel  of  real  estate  last  herein  de- 
scribed, and  that  it  is  right  and  proper  that  authority  be  given  to 
accomplish  the  same? 

Petitioners  therefore  pray  that  they  may  be  authorized  to  sell 
upon  such  terms  and  conditions  and  for  such  price  as  they  may 
deem  fit,  the  parcel  of  real  estate  described  as  follows,  to-wit:  (Here 
insert  description  of  real  estate),  that  they  be  authorized  to  en- 
cumber by  mortgage  for  such  length  of  time  and  upon  such  terms 
and  conditions  as  they  may  deem  fit  and  proper,  the  following 
parcel:  (Here  insert  parcel  to  be  encumbered),  and  for  such  further 
orders  and  directions  as  may  be  necessary  and  required  by  law  to 
accomplish  the  matters  and    things   herein   set  out. 

The  Trustees  of  Church  of  Ohio. 

By   , 

Their  Attorney. 

The  State  of  Ohio, ,  County,  ss.: 

Before  me,  the  undersigned  authority,  personally  came  F.  W.,  who 
being  by  me  first  duly  sworn.  Lays  that  he  is  one  of  the  trustees  of 
said  church,  and  that  the  facts  stated  and  allegations  contained  in 
the  foregoing  petition  are  true.  F.  W. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this day 

of  ,    19 .  . 

Notary  Public  in  and  for  County,   Ohio. 


No.  303.     Publication  of  notice  and  proof  of  same. 

In    the    matter    of    the    application    of    the    Trus- 
tees of  the  Church  of ,  Ohio, 

to  sell  and  mortgage  real  estate.  Case  No. 


Notice  is  hereby  given  that  a  petition  has  been  filed  in   the  court 

of   common    pleas, County,    Ohio,    Case    No.    ,    praying 

for    authority    from    said    court    to    sell    the    following    described    real 

estate,   situated    in   the  county   of .   State   of  Ohio,  and   in   the 

city  of  ,  to-wit:      (Here  insert  descrintion  of  real  estate),  also 

to  mortgage  the   following:       (Here   insert   description). 


MERWINE    ON    REAL    ACTIONS.  464 

Said  petition  will  be  heard  four  weeks  after  the  first  publication 
of  this  notice. 


Attorney   for   the    Trustees   of   Said   Church. 

State  of  Ohio,  County,  ss.: 

I,  L.  B.  S.,  being  first  duly  sworn,  depose  and  say  that  the  legal 
notice  of  which  a  true  copy  is  hereunto  annexed,  was  published  four 

times   (here  insert  dates  of  publication),  A.  D.  19 ,  in  ,  a 

daily  newspaper  printed  in  the  city  of  ,  County  of  , 

State    of    Ohio,    and   of   general    circulation    therein. 

L.  B.  S. 

Sworn   to  before  me,  and   subscribed   in   my   presence,  this  

day  of  ,  19 .  , 


(Seal.)  Notary  Public  in  and  for  County,  Ohio. 

No.  304.    Decree  of  court  authorizing  mortgage  of  part  and 
sale  of  part  of  real  estate  of  church. 

Court  of  Common  Pleas,  County,  Ohio. 

In    the    matter    of    the    application    of    the    Trus- 
tees   of    ,    to    mortgage    and 

sell  real  estate.  Decree 

No.  . 


This  cause  coming  on  for  hearing  and  the  court  finding  that  no- 
tice of  the  prayer  of  said  petition  has  been  given  for  four  consecu- 
tive   weeks   in   the  ,   and   the   court  being   satisfied   upon   the 

proofs  that  the  members  and  officers  of  said  church  desire  to  sell  and 
encumber  the  real  estate  described  in  the  petition,  and  that  it  is 
right  and  proper  that  authority  be  given  to  accomplish  the  same,  it 
is  therefore  ordered,  adjudged  and  decreed  that  the  trustees  of  said 
church  be,  and  the  same  are  hereby  authorized  and  directed  to  sell 
and  convey  by  deed  of  general  warranty,  the  following  described  real 

estate,  situated  in  the  county  of  ,  State  of  Ohio,  and  city  of 

,    to-wit:       (Here    insert    description    of    real    estate)    to    such 

person  or  persons,  upon  such  terms  and  conditions  and  for  such  price 
as  said   trustees  may  deem  proper. 

It  is  further  adjudged  and  decreed  that  said  trustees  be,  and  they 
are  hereby  authorized  to  encumber  by  mortgage,  for  such  length  of 
time,  and  upon  such  terms  and  conditions  as  they  may  deem  fit  and 

proper,  the  following  described  parcel  of  real  estate,  in  the  , 

county  of  and  State  of  Ohio,  to-wit:  (Here  insert  descrip- 
tion of  real  estate). 

It  is  further  ordered  that  said  trustees  make  due  return  of  their 
proceedings  hereunder  to  this  court  for  its  approval  at  the  next  term 
of  this  court. 


465  FORMS. 


No.  305.     Confirmation  of  sale  and  mortgage  of  real  estate. 

In  the  matter  of  the  application  of  the  trustees  of 

the     ,       Church     of , 

Ohio,  to  sell  and  mortgage  real  estate. 


Ex    parte    No.    . 

Now  come  the  trustees  of  said  church  and  make  return  of  their 
proceedings  as  hereinbefore  ordered  and  directed,  as  follows,  to- 
wit:  Said  trustees  have  sold  to  T.  G.  H.,  and  conveyed  to  him  by  deed 
in   fee  simple  the  premises  ordered  and   directed   to  be  sold  by   said 

trustees  in  a  previous  order  and  decree  herein,  for  the  sum  of  

dollars    ($ ),    which    deed    they    herewith    present   to   the    court 

and  ask  that  the  same  be  approved  and  confirmed. 

Said  trustees  have  mortgaged  by  first  mortgage,  the  premises  or- 
dered and  directed  to  be  mortgaged  by  said  trustees  in  a  previous 
order  and  decree  herein,  to  C.  S.,  for  the  sum  of  dollars,  for 

years,  with  the  option  of  paying  the  same  at  the  expiration 

of  one  year  by  giving  thirty  days'  notice  of  an  intention  so  to  do,  with 

interest   on   said    sum    from    date   at   the    rate    of   per   cent,    per 

annum,  payable  . 

Said  trustees  have  mortgaged  by  second  mortgage  the  premises 
directed  to  be  mortgaged  by  said  trustees  in  a  previous  decree  herein 
for  the  sum  of  dollars,  to  Church. 

And  the  court  having  carefully  examined  said  deed  and  said 
mortgage,  and  finding  them  in  all  respects  regular  and  in  conformity 
to  the  previous  orders  of  the  court,  the  same  are  hereby  approved  and 
confirmed,  and  it  is  further  ordered  by  the  court  that  the  proceeds 
arising  from  the  sale  of  said  real  estate,  and  the  proceeds  arising  from 
said  mortgages  be  applied  to  the  liquidation  of  the  indebtedness  of 
said  church  and  the  building  of  said  parsonage. 

No.  306.     Form  for  church  deed. 

Whereas.  To- wit:     On  the  day  of  ,  19 ,  at  the 

term    of    court,    the    trustees    and    officers    of    the    


Church  of  ,  Ohio,  filed  their  petition  in  the  court  of  common 

pleas,  county,  Ohio,  in  case  No.  ,  ex  parte,  among  other 

things  therein  praying  for  authority  to  sell  the  lands  and  tenements 
hereinafter  described;   and 

Whereas,  Legal  notice  of  the  pendency  and  prayer  of  said  petition 
was    duly    published    once    each    week    for    four    consecutive   weeks    in 

,  a  newspaper  of  general  circulation  of  County,  O.; 

and 

Whereas,  Afterward,  at  the  same  term  of  court,  said  trustees  of 
said  church  were  authorized  and  directed  to  sell  and  convey  by  deed 
of  general  warranty  said  lands  and  tenements  to  such  person  or  per- 
sons, and  for  such  price  or  prices  as  they  should  deem  proper, 

Now  Therefore  we,  F.  W.,  F.  S.,  L.  B.  L.,  L.  S.,  J.  S.,  A.  B.,  J.  H. 
L.,  C.  B.  S.  and  S.  G.  D.,  trustees  of  said  church,  in  consideration 
of  the  premises  and  of  the  sum  of  $ ,  and  by  virtue  of  the  order 


MEl'.WTNE   ON    REAL    ACTIONS.  466 

and  decree  of  said  court,  and  of  the  statute  in  such  cases  made  and  pro- 
vided, do  hereby  give,  grant,  bargain,  sell  and  convey  unto , 

his    heirs    and    assigns    forever,    the    following    described    real    estate, 

situate  in  the  county  of ,  and  in  the  State  of  Ohio,  and  in  the 

city   0f  1   to-wit:       (Here    describe   said    real    estate). 

To  Have  and  to  Hold  the  same  unto  the  said and  unto  his 

heirs  and  assigns  forever,  and  the  said  F.  W.,  F.  S.,  L.  B.  L.,  L.  S., 
J.  S.,  A.  B.,  J.  N.  L.,  C.  B.  S.  and  S.  G.  D.,  as  such  trustees  for  them- 
selves   and    their    successors    and    assigns,    do    hereby    covenant    with 

the  said  that  they  are  lawfully  seized  of  said  premises,  that 

said  premises  are  free  and  clear  except  the  unpaid  street  assess- 
ments   for    the    improvement    of    Street,    which    assessment 

herein    assumes    and    agrees    to    pay    as    part    consideration 

of  this  conveyance;  and  that  they  will  warrant  and  defend  said  prem- 
ises against  the  lawful  claims  of  all  persons  whomsoever,  excspt  as 
hereinbefore  mentioned. 

In  Witness  Whereof,  we,  the  trustees  aforesaid,  have  hereunto  set 
our  hands  and  seals  this  day  of  ,   19 . 


Signed,  sealed  and  acknowledged  in  the  presence  of 


State  of  Ohio,  County,   ss.: 

Before  me,  the  undersigned  authority,  ,  a  notary  public    in 

and  for County,  Ohio,  personally  came  F.  W.,  F.  S.,  L.  B.  L., 

L.  S.,  A.  B.,  J.  W.  L.,  C.  B.  S.  and  S.  G.  D.,  trustees  of  said 
church  and  the  grantors  in  the  foregoing  deed,  and  as  such  trustees 
acknowledged  the  signing  and  sealing  thereof  to  be  their  voluntary 
act  and  deed  for  the  uses  and  purposes  therein  mentioned. 

In  Witness  Whereof,  I  have  hereunto  affixed  my  notarial  seal  on 
the  day  and  year  last  aforesaid. 


Notary  Public,  County,  Ohio. 


CHAPTER   XII. 

LAW  AND  PROCEDURE  IN  PROCEEDING  TO 
FORECLOSE  A  MORTGAGE. 


Section. 

363.  The    execution    and    acknowl- 

edgment  of    a    mortgage. 

364.  The    lien   of    a    mortgage    and 

its      priority      over      other 
liens. 

365.  The    assignment    of    the    note 

carries  with  it  the  mort- 
gage security. 
36(5.  The  mortgagee's  remedies-— 
Foreclosure,  ejectment  and 
an  action  on  the  note  for 
a   personal  judgment. 

367.  Where     the     action     to     fore- 

close  a  mortgage   must   be 
brought. 

368.  The     action     to     foreclose     a 

mortgage  and  for  a  per- 
sonal judgment. 
360.  The  action  when  one  not  a 
party  to  the  transaction 
assumes  the  mortgage  and 
agrees    to    pay    it. 


Si  (i  ion. 

370.  Mortgage    may    he    foreclosed 

on  default  of  payment  of 
one  of  a  series  of  notes, 
when. 

371.  What     courts     have     jurisdic- 

diction  —  Personal  repre- 
sentatives and  assignees  of 
mortgagor. 

372.  A  receiver  may  be  appointed 

to  take  charge  of  the 
real  estate  in  the  action 
to  foreclose  a  mortgage, 
when. 

New  appraisement  and  terms 
of  sale  of  mortgaged 
premises. 

The  action  to  foreclose  a 
mortgage  on  real  estate 
and  procedure  incidental 
to  the  action. 


373. 


374. 


Sec.  363.     The  execution  and  acknowledgment  of  a  mortgage. 

A  mortgage  of  any  estate  or  interest  in  real  property  mnst 
be  signed  by  the  mortgagor,  and  sneh  signing  mnst  be  ac- 
knowledged by  the  mortgagor  in  the  presence  of  two  wit- 
nesses, who  shall  attest  the  signing  and  subscribe  their  names 
to  the  attestation,  and  snch  signing  mnst  also  be  acknowl- 
edged by  the  mortgagor  before  a  judge  of  record  in  this 
State,  or  a  clerk  thereof,  a  county  auditor,  county  surveyor. 
or  notary  public,  mayor,  or  justice  of  the  peace,  who  shall 
certify  the  acknowledgment  on  the  same  sheet  on  which  the 
instrument  is  written  or  printed,  and  subscribe  his  name 
thereto.1 

iGen'l    Code,     §8510     (R.     S.     §4106). 
467 


§364 


MERWINE    ON    REAL    ACTIONS. 


468 


Sec.  364.     The  lien  of  the  mortgage  and  its  order  of  priority. 

As  between  the  parties  to  a  mortgage,  if  properly  executed, 
acknowledged  and  delivered,  it  is  a  good  lien  on  the  real 
estate  described  in  the  mortgage.  However,  to  make  it  a 
valid  lien,  retaining  its  priority  as  to  every  one,  it  must  be 
filed  for  record  with  the  recorder  and  by  him  recorded  in  the 
proper  records  in  his  office.  This  is  made  so  by  a  statute 
providing  that  all  mortgages  executed  agreeably  to  the  pro- 
visions of  the  chapter  of  the  statutes  relating  to  conveyances 
and  incumbrances  of  real  estate,  shall  be  recorded  in  the  office 
of  the  recorder  of  the  county  in  which  the  mortgaged  prem- 
ises are  situated,  and  shall  take  effect  from  the  time  the 
same  are  delivered  to  the  recorder  of  the  proper  county  for 
record;  and  if  two  or  more  mortgages  are  presented  for  record 
on  the  same  day,  they  shall  take  effect  from  the  order  of  pre- 
sentation for  record;  the  first  presented  shall  be  first  recorded, 
and  the  first  recorded  shall  have  preference.2 

Space  forbids  a  full  discussion  of  the  nature,  extent  and 
priority  of  a  lien  of  a  defectively  executed  mortgage  though 
properly  filed  and  recorded,  and  afterwards  in  equity  cor- 
rected and  validated;  of  the  priority  of  lien  between  a  valid 
judgment  and  an  unrecorded  mortgage ;  of  a  mortgage  prop- 
erly filed  and  recorded  with  notice  of  an  outstanding  mort- 
gage unrecorded;  of  the  nature  and  effect  of  taking  a  pur- 
chase money  mortgage  upon  his  vendor's  lien;  of  the  lien  of  a 
purchase  money  mortgage  and  a  judgment  against  a  pur- 
chaser; and  of  a  mortgage  with  a  clause  to  cover  future 
advances,  and  reference  can  be  made  only  in  the  note  to  a 
few  of  the  decisions  on  these  subjects.3 


2  Gen'l    Code,    §  8542     (R.    S.     § 
4133).     See  Gen'l  Code,  §  2757    (R. 
S.   §  1143),  as  to  what  books  a   re- 
corder   is    required    to    keep.      See 
Gen'l  Code,  §  2760    (R.  S.  §   1149), 
as    to    when    a    copy    may    be    filed 
and    recorded     in    another    county. 
Fosdick     v.     Barr,    3     0.     S.    471 
Betta    v.     Snyder.     48     0.     S.     492 
Sidle    v.    Maxwell,    4    0.    S.    23fi 
Smith    v.     Smith,     13     0.    S.    532 
Paine     v.     Mason,     7     O.     S.     198 
Green  v.  Carrington,   Hi  O.  S.  548 
Jennings  v.  Wood,  20  0.  261;  Brown 
v.  Kirkman,    1   O.   S.    11G;    Tousley 


v.  Tousley,  5  O.  S.  78;  Stewart  v. 
Hopkins,"  30  O.  S.  502;  Building 
Association  v.  Clark,  43  0.  S.  427 ; 
a  deed  absolute  on  its  face  but  in 
reality  a  mortgage  recorded  under 
R.  S.  §  4134.  Kemper  v.  Campbell, 
44  0.  S.  210. 

"Van  Thornity  v.  Peters,  2G  0. 
S.  471;  Hood  v.  Brown,  2  0.  266; 
Magee  v.  Beatty.  8  0.  396;  Stousell 
v.  Roberts,  13*0.  148;  Mayham  v. 
Coombs,  14  0.  428;  White  v.  Den- 
man,  16  O.  59:  Fosdick  v.  Barr,  3 
O.  S.  471;  Tousley  v.  Tousley,  5 
0.  S.  78;   Erwin  v."  Shuey,  8  0.  S. 


469 


LAW    AND    PROCEDURE    TO    FORECLOSE    MORTGAGE. 


$365 


Sec.  365.     The  assignment  of  the  note  carries  with  it  the  mort- 
gage security. 

Where  a  promissory  note  is  secured  by  mortgage,  the  note, 
not  the  mortgage,  represents  the  debt.  The  mortgage  is 
therefore  a  mere  incident,  and  an  assignment  of  such  incident 
will  not,  in  law,  carry  with  it  a  transfer  of  the  debt ;  on  the 
other  hand,  a  transfer  of  the  note  by  the  owner  so  as  to  vest 
legal  title  in  the  indorsee  will  carry  with  it  equitable  owner- 
ship of  the  mortgage.  And  so,  if  the  debt  be  evidenced  by 
several  promissory  notes,  the  legal  transfer  of  a  portion  of 
the  notes  carries  with  it  such  proportional  interest  in  the 
security  as  the  notes  transferred  bear  to  the  whole. 

Being  but  an  incident  to  the  debt,  the  mortgage  remains 
until  foreclosure  or  possession  taken,  in  the  nature  of  a  chose 
in  action  Where  given  to  secure  notes,  it  has  no  determinate 
value  apart  from  the  notes,  and  so,  distinct  from  them,  is  not  a 
fit  subject  of  assignment.  And  where  the  notes  are  legally 
transferred,  the  mortgagee  and  all  claiming  under  him  will 
hold  the  mortgaged  property  in  trust  for  the  holder  of  the 
no^es*  It  has  been  held  that  where  the  mortgagee  retaining 
the  leo-al  interest  in  the  mortgage,  subsequently  enters  satis- 
faction and  a  discharge  upon  the  record  of  tne  mortgage,  such 
discharge  operates  to  cancel  the  record  of  the  mortgage,  as 
against  subsequent  purchases  and  mortgages  in  good  faith, 
and  without  notice;  and  as  against  them,  the  assignee  of  a 
note  secured  by  the  mortgage  can  not  assert  his  equitable 
lien.5 


500;  Kyle  v.  Thompson,  11  0.  S. 
616;  Bercaw  v.  Cockerell,  20  O.  S. 
163;  Boos  v.  Ewing,  17  0.  500; 
Ward  v.  Carey,  39  0.  S.  361;  Spad- 
ler  v.  Lawler,  17  0.  371.  As  to 
defective  mortgages,  see  Hitesman  v. 
Donnell,  40  0.  S.  287;  White  v. 
Doerner,  1  0.  S.  110;  Bloom  v. 
Noggle,  4  O.  S.  45;  Clements  v. 
Doerner,  40  0.  S.  632. 

Spear.  J.,  in  Koernohan  v.  Manss, 
53  0.  S.  133;  Harkreider  v.  Leiby. 
4  0.  S.  602:  Swartz  v.  Leist,  13 
0.  S.  410;  Fithian  v.  Corwin,  17 
0.  S.  118;  Allen  v.  Bank  23  0. 
S.  07;  Holmes  v.  Gardiner,  15  0. 
S.  167. 


4  Spear,  J.,  in  Koernohan  v. 
Manss,  53  0.  S.  133;  Jordan  v. 
Cheney.  74  Me.  359;  Jones  on  Mort- 
gages.'818;  Pomeroy's  Equity  Jur., 
§   1210. 

5  Swartz  v.  Leist,  13  0.  S.  420; 
lea  v.  Ropers.  54  0.  S.  678.  See 
Gen'l  Code,  §8546  ( R.  S.  §4135) 
for  statutory  requirement  for  re- 
lease of  a  mortgage,  and  also  for  the 
record  of  the  assignment  of  a  mort- 
gage. See  also  §  4135«  (Gen'l  Code, 
§  S547)  for  release  and  acknowledg- 
ment of  a  mortgage  on  a  separate 
certificate. 


§  §  366,  367  MERWINE    ON    REAL    ACTIONS.  470 

Sec.  366.  Mortgagee's  remedies — Foreclosure,  ejectment,  or 
an  action  on  the  note  for  a  personal  judgment. 
It  has  been  finally  decided  in  this  State  that  a  mortgagee 
In  tiding  and  owning  a  mortgage  in  the  ordinary  form,  eon^ 
veying  Ihe  real  estate  in  fee,  and  also  containing  a  condition 
of  defeasance,  reciting  that  if  said  mortgagors  shall  pay  to 
the  mortgagee  or  his  order  said  indebtedness,  when  due  and 
payable,  then  the  deed  should  be  void,  otherwise  to  be  and 
remain  in  full  force  and  virtue,  has  three  remedies  which 
are  older  than  our  code  of  civil  procedure,  and  which  arc 
not  affected  or  superseded  by  it.  He  may  bring  an  action  in 
foreclosure  of  the  mortgage,  have  an  account  taken  of  the 
debt  secured  by  it  and  an  order  of  sale,  cutting  off  the  equity 
of  redemption;  or  he  may,  after  condition  broken,  assert  title 
under  the  mortgage  and  bring  ejectment  and  recover  posses- 
sion of  the  mortgaged  premises.  This  latter  remedy  is  the 
better  one  when  fifteen  years  has  elapsed  after  the  claim  is 
due;  for  the  limitation  of  the  action  on  the  note  and  mortgage 
in  the  action  is  fifteen  years,  while  in  the  action  of  ejectment, 
the  limitation  is  twenty-one  years.6  But  the  remedy  in  eject- 
ment does  not  cut  off  the  right  of  redemption.7  The  lien  of 
the  mortgage  may  be  invalid  and  the  mortgagor  respon- 
sible for  his  obligation.  The  action  then  may  be  for  a  per- 
sonal judgment.  The  action  to  foreclose,  the  action  in  eject- 
ment, and  the  action  for  a  personal  judgment  for  the  debt 
may  all  be  brought  at  one  time.8 


'bJ 


Sec.  367.  "Where  the  action  to  foreclose  a  mortgage  must  be 
brought. 
The  code  provides  that  actions  for  the  sale  of  real  prop- 
erty under  a  mortgage,  lien  or  other  incumbrance  or  charge, 
must  be  brought  in  the  county  where  the  real  estate  is  situ- 
ated.9 But  when  the  property  is  situated  in  more  than  one 
county,  the  action  may  be  brought  in  either;  but  this  can  only 
be  done  when   the  property  is  an  entire  tract.10 

fl  Brodfield  v.  Hale,  07  O.  S.  323;  t  Brodfield  v.  Hale,  07  0.  S.  323. 

Doe      v.     Pendleton,      15     0.      735;  *  Longworth   v.   Flagg,    10   0.  302. 

Frische     v.     Kramer,     16     0.     125;  *>  Gen'l      Code,      §11268      ( R.     S. 

Childs    v.    Childs,     10    0.    S.    .'53!);  §5019).      Maholm    v.    Marshall,    2!) 

Allen     v.     Everly,     24     0.     S.     07;  0.  S.  611;  Kraner  v.  Fouster,  32  W. 

Williams    v.    Englebrecht,    37    O.   S.  L.  B.    199. 

383;     Kerr    v.    Lydecker,    51    0.    S.  io  Gen'l     Code,     §11269      (R.     S. 

2  10.  §5020). 


471      LAW  AND  PROCEDURE  TO  FORECLOSE  MORTGAGE.     §  368 

Sec.  368.     The  action  to  foreclose  a  mortgage  and  for  a  per- 
sonal judgment. 

The  plaintiff  may  unite  several  causes  of  action  in  the 
been  denominated  legal  or  equitable,  or  both,  when  the  can 
of  action  arc  claims  to  foreclose  a  mortgage  given  to  secure 
the  payment  of  money  and  to  recover  a  personal  judgment 
for  the  debt  secured  by  such  mortgage.11  This  requirement  is 
permissive  at  the  election  of  the  plaintiff.12  In  order  that 
plaintiff  may  have  a  personal  judgment,  the  prayer  of  the 
petition  must  ask  for  it,13  and  the  service  must  be  personal.14 
A  personal  judgment  can  be  entered,  in  a  proper  case,  against 
all  of  the  makers  of  the  note  and  a  foreclosure  of  the  mort- 
gage against  one  of  them.15 

Sec.  369.  The  action  when  one  not  a  party  to  the  mortgage 
assumes  it  and  agrees  to  pay  it. 
The  law  is  that  one  who  assumes  a  real  estate  mortgage, 
in  a  deed  of  the  real  estate  to  him,  and  agrees  to  pay  it, 
becomes  the  principal  debtor  and  his  grantor  becomes  surety, 
and  the  rule  is  that  where  successive  grantees  assume  the 
mortgage  debt,  the  last  grantee  assuming  the  debt  is  the 
principal  debtor  and  each  successive  grantee  is  surety.  It  is 
a  rule  of  law  in  this  State  that  Avhere  the  purchaser  of  real 
estate  takes  it  incumbered  with  a  mortgage,  and  an  abate- 
ment is  made  in  the  consideration  on  account  of  the  mortgage, 
the  law  will  imply  a  promise  on  the  part  of  the  purchaser  to 
pay  the  mortgage  debt.16  The  agreement  may  be  enforced 
by  the  last  purchaser  against  such  previous  owner,  though 
the  agreement  may  not  have  been  made  to  and  with  the  latter. 
The  law  will  imply  the  agreement.17  And  the  agreement 
though  made  orally,  can  be  enforced.18 

nGen'l    Code,    §   1130!)    ( R.   S.    §  ie  Thompson    v.    Thompson,    4    0. 

5061).  S.  333. 

12  Spence  v.   Insurance  Co.,  40   0.  "  Emmet  v.  Brophy,  42  O.  S.  82. 
S.    417.  i- Society     v.    Haines,    47     0.     S. 

13  Giddings    v.    Barney,    31    0.    S.  424;    as    to    agreements    to    assume 
80.  mortgages,    see    Brewer    v.    Maurer, 

i+    Wood   v.   Stanberry,   21    0.   S.  38  O.   S.  543;   Poe  v.   Dixon,  60   0. 

142.  S.    124:    Barker   v.    Comp,    71    Am. 

"King  v.  Safford,  19  O.  S.  587;  St.     186;     Ordway    v.    Downer,    51 

Butzman  v.  Whitbeck,  42  O.  S.  223;  Pac.      Rep.      1047;      Thompson      v. 

but   see  Larrimore   v.   Clemmer,   31  Chessman,  48  Pac.  Rep.  477;   Stan- 

O.  S.  499.  ton  v.  Kendrick,  35  N.  E.  Rep.  19. 


§§370,371 


MERWINE   ON   REAL   ACTIONS. 


472 


Where  the  action  is  against  several  grantees  who  have  as- 
sumed the  mortgage  and  agreed  to  pay  it,  there  is  but  one 
cause  of  action,  and  all  of  them  may  be  set  forth  in  one 
petition  without  being  separately  stated  and  numbered.  This 
was  the  form  of  action  in  the  petition  cited  in  the  note  in 
which  the  action  was  decided  by  the  Supreme  Court  of  this 
State  without  report.19 

Sec.  370.     Mortgage  may  be  foreclosed  on  default  of  payment 
of  one  of  a  series  of  notes,  when. 

When  there  are  a  series  of  promissory  notes  for  specific 
sums,  payable  at  different  specific  dates,  each  secured  by  a 
mortgage  of  real  estate  containing  a  stipulation  that  if  default 
be  made  in  the  payment  of  any  one  of  the  notes,  then  each 
and  all  should  fall  due  and  the  mortgage  to  become  absolute 
as  to  all  of  the  notes  remaining  unpaid  at  the  time  of  such 
default,  the  mortgage  may  be  foreclosed  as  to  the  whole  debt 
and  the  real  estate  sold  to  satisfy  the  same.20 

Default  in  the  payment  of  the  interest  when  due,  if  so  de- 
clared in  the  mortgage,  will  authorize  a  foreclosure  of  the 
mortgage  for  a  satisfaction  and  payment  of  the  whole  debt.21 
The  mortgage  may  provide  for  a  foreclosure  on  failure  of  the 
mortgagor,  or  owner,  to  insure  the  premises.22 

Sec.  371.     What  courts  have  jurisdiction— Personal  represent- 
atives and  assignees. 

The  court  of  common  pleas  has  jurisdiction  to  foreclose  a 
mortgage,  but  when  the  action  is  begun  by  the  owner  and 
holder  of  the  mortgage,  after  the  death  of  the  mortgagor,  the 
personal  representatives  have   the   right   to   sale   of  the   real 


is  See  No.  324  for  form  of  peti- 
tion in  such  case;  see  also  Pome- 
roy's  Code  Remedies,  §  459;  1  Kin- 
kead's  Code  Pleading,  §  584;  But 
ler  et  al,  v.  Beebe,  Supreme  Court 
of  Ohio,  unreported. 

aoMcCleland  v.  Bishop,  42  0.  S. 
113;  Goodman,  etc.,  v.  Cincinnati, 
etc..  2  Disney  176;  King  v.  Long- 
worth,  7  0.  (pt.  2)  25;  Cincinnati, 
etc.,  v.  The  Central  Trust,  etc.,  25 
W.  L.  B.  375;  as  to  how  such 
notes  assigned  to  different  persons 


will  be  paid  see  Bushfield  v.  Meyer, 
10  0.  S.  334.  Also  Brewton  v. 
Cromwell,  51  O.  S.  579;  Coons  v. 
Clifford,  58  0.  S.  480;  51  N.  E. 
39;  Bank  v.  Covert,  13  0.  240; 
Winters  v.  Bank,  33  0.  S.  250; 
see  Exchange  Bank  v.  Eddy,  10  W. 
L.  B.  389. 

21  Goodman,    etc.,   v.    The   Cincin- 
nati, etc.,  2  Disney,  170. 

22  Gotscholl    v.    Mohler,    et   al,    1 
Iddings   T.   P.    D.   27. 


473  LAW    AND   PROCEDURE    TO   FORECLOSE    MORTGAGE.  §  372 

estate  by  petition  to  sell  in  the  probate  court,  in  which  action 
the  holder  of  the  mortgage  may  set  up  his  claim  by  cross- 
petition.  After  a  mortgagor  has  made  an  assignment  for  the 
benefit  of  creditors,  his  mortgagee  can  not  bring  his  action  to 
foreclose  the  mortgage  in  the  common  pleas  court.  In  such 
case  the  assignee  has  complete  jurisdiction,  and  must  sell  the 
real  estate  subject  to  the  rights  of  the  mortgagee  in  the  real 
estate.23  Where  the  remedy  in  the  probate  court  is  inadequate 
the  action  may  be  brought  in  the  common  pleas  court. 

Sec.  372.     A  receiver  may  be  appointed  to  take  charge  of  the 
real  estate  in  the  action  to  foreclose  a  mortgage,  when. 

A  receiver  may  be  appointed  by  the  Supreme  Court,  or  a 
judge  thereof;  the  circuit  court,  or  a  judge  thereof  in  his  cir- 
cuit ;  the  common  pleas  court,  or  a  judge  thereof  in  his  district ; 
or  the  probate  court,  in  an  action  by  a  mortgagee  for  a  fore- 
closure of  his  mortgage  and  sale  of  the  mortgaged  property, 
where  it  appears  that  the  mortgaged  property  is  in  danger  of 
being  lost,  removed  or  materially  injured,  or  that  the  condi- 
tions of  the  mortgage  have  not  been  performed  and  the  prop- 
erty is  probably  insufficient  to  discharge  the  mortgage  debt.-4 

Notice  must  be  given  of  the  time  and  place  where  the  appli- 
cation for  a  receiver  will  be  made.  The  facts  showing  that 
a  receiver  should  be  appointed  under  the  provisions  of  the 
statute  are  presented  to  the  court  usually  by  affidavit  filed 
in  the  case.  The  order  of  the  court  should  specifically  set 
forth  the  duties  of  the  receiver  and  the  property  given  to 
his  charge. 

Sec.  373.     New  appraisement  and  terms  of  sale  of  mortgaged 
premises. 

When  premises  are  ordered  to  be  sold  and  having  twice 
been  offered  for  sale,  remain  unsold  for  want  of  bidders,  the 
court  from  which  the  order  of  sale  issued  is  required,  on 
motion  of  the  plaintiff  or  defendant,  to  order  a  new  appraise- 
ment, and  may  also  order  that  the  land  be  sold  on  time  as 

23  Havens    v.    Horton,    53    0.    S.  24  Gen'l    Code,    §11894     (R.    S.    § 

342;    25   W.   L.   B.   37;    Omwake   v.       5587). 
Jackson,    5    N.    P.     119;     but     see 
Dwyer  v.   Gar  lough,   31   0.   S.   158. 


§  374  MERWINE    ON    REAL    ACTIONS.  474 

follows:  One-third  cash  in  hand,  one-third  in  nine  months  from 
the  day  of  sale,  and  the  remaining  third  in  eighteen  months 
from  the  day  of  sale,  the  deferred  payments  to  draw  six  per 
cent,  interest  and  to  be  secured  by  mortgage  on  the  premises.-"' 
The  subject  of  the  proceedings  after  judgment  is  discuss".! 
elsewhere.  There  will  also  in  the  same  place  be  found  a  full 
discussion  of  the  orders  of  sale,  the  sheriff's  duties,  the  ap- 
praisement, the  notice  of  sale,  proof  of  notice,  the  terms  of 
sale,   the   sale,    confirmation   and   the   deed   to   the   purchaser. 

Sec.  374.     The  action  to  foreclose  a  mortgage,  and  the  proce- 
dure incidental  to  the  action. 

Ordinarily  the  action  is  brought  for  a  personal  judgment 
and  for  a  foreclosure  of  the  mortgage  to  satisfy  the  debt.  In 
such  an  action  the  service  of  summons  must  be  personal;  for  a 
personal  judgment  can  not  be  secured  on  constructive  service 
even  though  the  court  has  jurisdiction  over  the  property.2'' 
The  usual  form  for  such  petition  is,  in  one  cause  of  action 
to  declare  on  the  note  in  the  ordinary  way,  and  in  the  second 
cause  of  action,  on  the  mortgage  given  to  secure  the  same.27 
The  cause  of  action  setting  forth  the  mortgage,  may,  by  apt 
and  accurate  language,  adopt  the  allegations  of  the  cause  of 
action  declaring  on  the  note.  But  the  reference  and  the  adop- 
tion must  be  clear  and  definite,  and  not  leave  any  doubt  as  to 
its  meaning.2S 

The  petition  should  allege  the  execution  and  delivery  of  the 
mortgage  to  secure  the  payment  of  the  note  and  contain  a 
description  of  the  real  estate,  and  the  conditions  contained 
in  the  defeasance  clause  of  the  mortgage,  the  default  making 
the  mortgage  absolute,  the  date  of  the  filing  of  the  mortgage 
with  the  recorder  for  record,  the  date  of  the  recording  thereof, 
and  the  volume  and  page  of  the  record  thereof,  and  also  a 
prayer  for  personal  judgment  and  a  foreclosure  of  the 
mortgage. 

Where  the  service  is  constructive  or  in  case  no  personal 
judgment   is  sought,  the  petition  need  contain  only  one  cause 

--<;,.„■]    Code,    S   11711     (  K.    S.    §  tion    and    for   forms    for   all    of   the 

5417):   see   Brown  v.   Insurance  Co..  procedure   in   sale  of  real   estate  by 

G  C.  C.  62.  foreclosure     of     mortgage     on     real 

2eGiddings    v.    Barney,    31    0.    S.  estate 
80.  -s  1      Kinkead's      Code     Pleading, 

27  See   No.   :;i)7    for   form   of   peti-  §    titi. 


475  LAW    AND    PROCEDURE    TO    FORECLOSE    MORTGAGE.  §  374 

of  action.  In  such  case,  the  prayer  is  that  the  court  may 
find  the  amount  due  plaintiff,  and  that  the  mortgage  may  be 
foreclosed  and  the  real  estate  therein  described  sold  to  satisfy 
the  amount  so  found  due.  Every  one  claiming  an  adverse 
interest  in  the  real  estate  should  be  made  a  party  with  the 
allegation  as  in  the  foreclosure  of  other  liens.-" 

The  wife  of  the  mortgagor  who  does  not  si^n  the  mortgage 
.should  be  made  a  party  defendnnt,  so  that  she  can  come  into 
the  case  by  answer  and  ask  that  dower  be  assigned  her  in 
the  real  estate,  or  that  the  real  estate  may  be  sold  free  of 
her  dower,  and  that  she  be  endowed  in  money  out  of  the  pro- 
ceeds of  the  sale.  A  mortgage  given  for  the  purchase  money 
need  not  be  executed  by  the  wife.  She  has  no  right  of  dower 
therein  as  against  such  mortgage. 

For  full  discussion  of  the  procedure  as  to  parties,  reference 
is  had  to  the  first  chapter  of  this  work.  There  will  be  found 
the  law  and  procedure  connected  with  the  issuing  and  service 
of  summons  in  the  action,  how  defendants  may  voluntarily 
enter  their  appearance  to  the  action,  how  service  of  summons 
may  be  had  upon  residents  of  the  county  and  non-residents  of 
the  county  who  are  residents  of  the  State,  how  service  of 
summons  is  had  on  non-residents  of  the  State  by  publication 
and  by  copj^  of  the  petition,  how  infants  are  served  with  sum- 
mons and  are  defended  by  guardians  ad  litem  appointed  by 
court  and  the  conduct  of  such  defense,  how  insane  persons 
are  defended  by  trustees  appointed  by  the  court  and  how 
all  of  the  steps  must  be  taken  in  order  to  give  the  court  the 
power  to  hear  and  determine  the  rights  of  the  parties  to 
the  action. 

29  See   §  60,  judgments  and  executions. 


FORMS. 


PROCEDURE  BY  WHICH  MORTGAGE  IS  FORECLOSED. 


Forms.  Forms. 

307.     Petition     on     foreclosure     of 

real  estate  mortgage. 
The    precipe.  m  321. 

The   summons  in   such   action 

and  the   sheriff's  return  of 

the  same. 
Motion    for    the    appointment       322. 

of  a  trustee  to  defend  for 

an  insane  person. 
Affidavit  in  proof  of  insanity 

of   defendant.  323. 

Order    appointing   trustee     to 

defend   for   an   insane   per- 
son. 
Answer   of   trustee  for  insane       324. 

defendant. 
Decree  in  foreclosure. 
Order  of  sale  from  the  clerk 

to    the    sheriff. 
The    appointment  of   apprais- 
ers and  their  oath. 
Appraiser's  report.  325. 

Proof  of  publication  of  notice 

of   sale  of  real  estate. 
The    legal    notice    of    sale    of 

real  estate.  326. 

The    sheriff's     return     of    his 

proceedings  in  sale  of  real 


estate     in     foreclosure     of 


mortgage. 


308. 
309. 


310. 


311. 


312. 


313. 

314. 
315. 

31G. 

317. 

318. 

319. 
320. 


Entry  confirming  sheriff's 
sale  of  real  estate,  order- 
ing deed  and  distributing 
proceeds  of  sale. 

Sheriff's  deed  of  real  estate 
to  purchaser  thereof  in 
foreclosure  of  real  estate 
mortgage. 

Petition  for  foreclosure  of 
mortgage  where  a  grantee 
in  deed  assumes  the  mort- 
gage and  agrees  to  pay  it. 

Petition  for  foreclosure  of 
mortgage  where  successive 
grantees  in  subsequent 
deeds  assume  the  mortgage 
and  note  and  agree  to  pay 
the  same  as  a  part  of  the 
consideration  thereof. 

Petition  for  reformation  of  a 
mortgage,  foreclosure  of 
same  and  for  the  mar- 
shaling of  liens. 

Petition  to  declare  a  deed  a 
mortgage  and  for  a  fore- 
closure  of  the   same. 


No.  307.     Petition  for  foreclosure  of  real  estate  mortgage. 

Court  of  Common  Pleas,  County,  Ohio. 

H.  S.   B.  and  J.  E.  B.,  Plaintiffs, 

vs. 
J.  G.  T.  and  V.  T.,  Defendants. 


No 


Petition. 
1.     First   cause   of  action. 
Plaintiffs  say  that  on  the  -      -  day  of 


the  defend- 


ants, J.  G.   T.  and  V.  T.,  made  and  delivered  to  the   plaintiffs   their 

476 


477  FORMS. 

promissory  note  of  that  date,  a  copy  of  which  is  as  follows:      (Here 

copy  note).  _ 

There  are  no  credits  or  indorsements  on  said  note.  The  said  H. 
S  B.  and  J.  E.  B.,  plaintiffs,  are  one  and  the  same  persons  as  H.  S. 
and  J.  E.  B.  to  whose  order,  by  initial  letters,  said  note  was  payable. 
Plaintiffs  sav  that  they  are  still  the  owners  and  holder  of  said  note, 
and  that  there  is  due  them  thereon  from  the  defendants,  J.  G.  T.  and 

V    T     the  sum  of  $ with  interest  on  said  sum  at  ■  per  cent. 

from  the  day  of  ,  19-   to  the  day  of ,  19-, 

together  with  interest  on  the  sum  of  $ at  per  cent,  from 

(   i9_    and  per  cent,   on   $ from    said  , 

19_.     xo  interest  has  been  paid  on   said  note. 

2.    Second  Cause  of  Action. 

For  a  second  cause  of  action  against  said  defendants,  the  plaintiffs 
adopt  so  much  of  the  first  cause  of  action  as  is  contained  between  the 

words  "Plaintiffs  say  that  on  the  day  of  ,  19—,"  in  the 

first  line  therein,  to  and  including  the  words,  "No  interest  has  been 
paid  on  said  note,"  in  the  last  line  therein,  the  same  as  if  fully  re- 
written herein,  and  say  that  the  defendants,  J.  G.  T.  and  V.  T.,  on  the 

day  of 19—,  to  secure  the  payment  of  said  promissory  note 

set  forth  in  said  'first  cause  of  action  herein,  executed  and  delivered 
to  plaintiffs,  their  heirs  and  assigns  forever,  the   following  described 

lands  and  tenements  situate  in  the  county  of  ,  State  of 

and  in  the  city  of ,  and  was  bounded  and  described  as  follows: 

(Here  insert  description  of  real  estate). 

Plaintiffs  further  say  that  said  mortgage  deed  contains  a  con- 
dition in  substance  that  if  the  said  J.  G.  T.  and  V.  T.  should  default 
in  the  payment  of  interest  on  said  note  or  any  part  thereof,  for 
thirty  days  after  the  same  became  due  and  payable,  the  principal 
and  all  accrued  interest  should  thereby  become  due  and  payable: 
and  that  if  said  J.  G.  T.  and  V.  T.  should  default  in  the  payment 
of  said  interest  according  to  the  tenor  and  effect  thereof,  then  said 
mortgage  deed  should  become  void,  otherwise  to  be  and  remain  m 
full  force  and  virtue   in  law. 

Plaintiffs  further  say  that  by  reason  of  the  failure  of  defendants 
J  G  T  and  V.  T.  to  pav  the  interest  on  said  note  when  the  same 
became    due    and   payable   or   within   thirty    days   thereafter,   the   said 

mortgage  deed  has  become  absolute;  that  on  the  day  of 

19_  at  —  o'clock  — m..  of  said  day,  said  mortgage  was  delivered 
to  the  recorder  of  said  county  for  record  and  was  by  him  dub- 
recorded    on    the    day    of    ,    19-,    in    Vol.    — -    of    the 

Record   of  Mortgages,   at   page  thereof  of  said   records      Said 

mortgage    contained    thereon,    duly    cancelled    United    States    Internal 

Revenue  Stamps  to  the   amount  of  cents. 

Wherefore    plaintiffs    pray    judgment    against    said    defendants.    J. 

G.    T.    and   V.    T,    for   said   sum    of   $ ,    with    interest   thereon 

at  per  cent,  from  the  — day  of  ,  19         .  to       e 

day  0f  19 .  together  with  interest  at  Per 

Cent.  on  $ from ,  19 ,  and  with  interest  at 


MERWINE    ON    REAL    ACTIONS.  478 

per  cent,  on  $ from  the  day  of  ,  19 ;    that 

said  mortgage  deed  may  be  foreclosed,  that  said  premises  may  be 
ordered  sold,  the  proceeds  applied  in  the  payment  of  said  debt,  and 
for  such  other  and  further  relief  as  equity  and  the  nature  of  the  case 

may    require.  

Attorneys   for  Plaintiffs. 

Petition  should  be  verified  as  in  other  cases. 

No.  308.     The  Precipe. 

To   the   Clerk: 

Issue  summons  in  the  above  action  for  the  defendants,  J.  G.  T.  and 
V.  T.,  returnable  according  to  law.  Indorse  "an  action  upon  prom- 
issory  note   and   foreclosure   of   mortgage,   amount   claimed   $ , 

with    interest  thereon   at  per   cent,    from   ,    19 ,   to 

,  19 ,  and  interest  on  said  sum  at  per  cent,  from 

,    19 ,  and   with   interest  on   $ at  per 

cent,  from  ,  19 ,  and  for  equitable  relief." 


Attorneys    for    Plaintiff. 


No.  309.     The  summons  in  such  actions  and  the  sheriff's  return 
of  the  same. 

The  State  of  Ohio,  —  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  commanded  to  notify  J.  G.  T.  and  V.  T.  that  they  have  been 

sued  by  H.  S.  B.  and  J.  E.  B.  in  the  Court  of  Common  Pleas  of  

County,  and  that  unless  they  answer  by  the  day  of  ,  in 

the    year    of    our    Lord    one    thousand    nine    hundred    ,     the 

petition  of  said  plaintiffs  against  them  filed  in  the  clerk's  office  of 
said  county,  such  petition  will  be  taken  as  true  and  judgment  rendered 
accordingly. 

You    will    make   due   return  of   this  summons,   on   the   day   of 

,  in  the  year  of  our  Lord  one  thousand  nine  hundred  , 


Witness  my  hand  and  seal  of  said  court,  this  day  of , 

in  the  year  of  our  Lord  one  thousand  nine  hundred  . 

J.  W.  M., 
Clerk  of  Common  Pleas,   County. 

Sheriff's   Service  of   Summons. 

The  State  of  Ohio,  County,  ss.: 

Received  this  writ in  the  year  of  our  Lord  one  thousand 

nine    hundred    ; — ,    at    o'clock    — u.,    and    pursuant    to    its 

command,   on   ,    in   the   year   of  our   Lord   one   thousand   nine 

hundred  ,   I   served  the  same,  leaving  a   true  and   duly  certi- 
fied   copy    of    this    writ    with    all    the    indorsements    thereon    at    the 


479  FORMS. 

usual   place   of  residence  of  each   of  the   following  within    named   de- 
fendants,  J.   G.    T.   and   V.   T.  C.   A.   P.,   Sheriff. 

No.  310.     Motion  for  appointment  of  a  trustee  to  defend  for 
an  insane  defendant. 

Conn  of  Common  Pleas, County,  Ohio. 


No. 


H.  S.  B.  and  J.  E.  B., 
Plaintiffs, 
vs. 

J.  G.  T.  and  V.  T., 
Defendant 

Now  come  the  plaintiffs  by  their  attorney  and  move  the  court, 
for  the  appointment  of  a  trustee  herein  to  defend  this  action  on 
behalf  of  the  defendant,  J.  G.  T.;  for  the  reason  that  said  defendant, 
J.  G.  T.,  is  insane  and  has  no  legally  appointed  guardian  to  defend 
this   action   for  him. 

No.  311.     Affidavit  in  proof  of  insanity  of  defendant. 

The  State  of  Ohio,  County,  ss.: 

E.  W.  S.,  being  first  duly  sworn,  says  that  he  is  a  regular  prac- 
ticing physician  and  engaged   in  the  practice  of  medicine  in  the  City 

of ,  Ohio;    that  he  has  been  the  physician  of  the  defendant, 

J.  G.  T.,  for  some  time  past  and  has  observed  the  mental  and  physical 
condition   of   the    said   J.   G.    T. 

This   affiant   says  that  at  the   present  time   the   mind   of   him,  the 

said  J.  G.  T.,  is  in  a  state  of  ,  and   that  the  same   is  not 

possessed  of  sufficient  vigor  to  defend  properly  a  lawsuit  of  any  kind 
whatever.  E-  W"  S- 

Verified  as  in  other  cases. 

No.  312.     Order  appointing  trustee  to  defend  for  an  insane 

person. 

Court  of  Common  Pleas, County,  Ohio. 

H.  S.  B.  and  J.  E.  B., 
Plaintiffs, 

No.    


vs. 
J.  G.  T.  and  V.  T., 

Defendants. 

This  cause  came  on  to  be  heard  upon  the  application  for  the  ap- 
pointment of  a  trustee  for  the  defendant,  J.  G.  T.,  to  defend  this  action 
for  him  and  on  his  behalf  was  submitted  to  the  court,  was  argued 
by  counsel  and  heard  upon  the  testimony,  and  the  court  finds  that  it. 
is  necessary  that  such  trustee  be  appointed  and  sustains  said  motion. 

It  is  ordered,  adjudged  and  decreed  that  M.  L.   B.   be.  and  he  is 


MERWINE   ON    REAL   ACTIONS.  480 

hereby  appointed  a  trustee  to  defend  this  action  for  the  defendant, 
J.    G.   T. 

No.  313.    Answer  of  trustee  for  an  insane  defendant. 

Coubt  of  Common  Pleas, County,  Ohio. 

H.  S.  B.  and  J.  E.  B.( 
Plaintiffs, 

vs.  No.    . 

J.  G.  T.  and  V.  T., 

*    Defendants. 

Now  comes  ,  heretofore  appointed  herein  for  the  purpose 

of  conducting  this  defense  for  the  defendant,  J.  G.  T.,  and  for  his 
answer  as  such  trustee  herein  says,  that  he  has  no  knowledge  of  the 
facts  and  allegations  contained  in  the  petition,  and  for  want  of  such 
knowledge  denies  each  and  every  allegation  contained  therein  and 
demands  proof  of  the  same. 

Answer   should  be  verified  as  in  other  cases. 

No.  314.     Decree  in  foreclosure. 

Court  of  Common  Pleas, County,  Ohio. 

H.  S.  B.  and  J.  E.  B., 
Plaintiffs, 

vs.  No.    . 

J.  G.  T.  and  V.  T., 

Defendants. 

This  day  this  cause  came  on  to  be  heard  on  the  petition  of  the 
plaintiffs,  the  answer  of  M.  L.  B.,  as  trustee  for  J.  G.  T.,  one  of  the 
defendants  herein,  and  the  evidence;  trial  was  had,  and  the  cause  was 
submitted  to  the  court  without  the  intervention  of  a  jury;  on  con- 
sideration whereof  the  court  finds  on  the  issues  joined  between  the 
plaintiffs  and  M.  L.  B.,  as  trustee  for  J.  G.  T.,  in  favor  of  the  plain- 
tiffs; the  court  further  finds  that  the  defendants,  said  J.  G.  T.  and 
V.  T.,  were  each  duly  and  legally  served  with  summons  and  are 
in  default  for  answer  or  demurrer,  and  that  the  allegations  of  the 
petition  are  by  them  confessed  to  be  true;  the  court  further  finds 
that  said  defendants,  J.  G.  T.  and  V.  T.,  duly  executed  and  delivered 
to  plaintiffs  the  promissory  note  set  forth  in  the  petition,  and  in  the 
manner  set  forth  in  the  petition;  that  no  payments  have  been  made 
on  the  said  note  by  either  of  the  defendants,  or  by  anyone  for  them, 
and  that  there  are  no  credits  thereon;  that  said  defendants  were 
in  default  for  the  first  installment  of  interest  for  a  period  of  more 
than  thirty  days,  and  that  the  entire  principal  and   interest  became 

due  and  payable  ,  19 .     The  court  further  finds  that  the 

said   H.   S.  and  J.   E.   B.,  named  as  payees   in  said  promissory  note, 
by  initial  letters  of  their  names,  are  the  same  persons  as  H.  S.  B.  and 


481  FORMS. 

J.  E.  B.,  the  plaintiffs  herein;  and  that  there  is  now  due  and  payable 
to  said  plaintiffs  from  the  defendants,  J.  G.  T.  and  V.  T.,  to  the  date 

of  this  decree  ( ,  19 ),  on  said  note  in  the  petition  described, 

the  total   sum   of   $ ,   it  being  the  entire  original    principal   of 

$ ,  with  interest  thereon  as  specified  and  allowed  in  said  note. 

The  court  further  finds  that  in  order  to  secure  the  payment  of 
said  promissory  note  in  the  petition  set  forth,  the  defendants,  J.  G.  T. 
and  V.  T.,  who  is  the  wife  of  said  J.  G.  T.,  executed  and  delivered 
to  the  plaintiffs  herein  their  certain  mortgage  deed  as  in  the  petition 
described,  and  on  the  premises  therein  described,  as  is  fully  set 
out  and  alleged  in  said  petition;  that  said  mortgage  was  duly  recorded 

in  Vol.  No.  ,  at  page  ,  of  the  Record  of  Mortgages  of  

County,  Ohio,  and  is  a  good  and  valid  lien  on  the  premises  described 
in  the  petition,  and  by  reason  of  the  failure  to  pay  said  promissory 
note  according  to  its  tenor  and  effect,  the  conditions  of  said  mortgage 
have  been  broken  and  the  same  has  become  absolute. 

It  is  therefore  considered  by  the  court  that  the  plaintiffs,  H.  S.  B. 
and  J.   E.   B.,   recover   from   the   defendants,   J.   G.   T.   and   V.   T.,   the 

said    sum    of    $ and    their   costs   herein    expended;    that    said 

sum  of  $ bear  interest   from  the  date   of  this  judgment  and 

decree    ( ,    19 ),    at    the    rate    of    per    cent,    per 

annum  until  paid;  and  that  if  not  paid  within  three  days,  execution 
issue  therefor. 

And  it  is  further  ordered,  adjudged  and  decreed  that  unless  the 
defendants,  J.  G.  T.  and  V.  T.,  shall,  within  three  clays  from  the 
entry  of  this  decree,  pay,  or  cause  to  be  paid  to  the  clerk  of  tlrs 
court  the  costs  of  this  case,  and  to  the  plaintiffs  herein  the  said  sum 

found  due  as  aforesaid,  with  interest  thereon  at  per  cent,  per 

annum  from  the  day  of ,  19 ,  then  the  equity  of  redemption 

of  the  said  defendants,  J.  G.  T.  and  V.  T.,  shall  be  foreclosed,  and 
said  premises  shall  be  sold,  and  an  order  of  sale  issue  to  the  sheriff 

of  County,  Ohio,  directing  him  to  appraise,  advertise  and  sell 

said  premises  as  upon  execution  free  and  clear  of  any  dower  of  the 
said  V.  T.,  and  report  his  proceedings  to  this  court  for  further  order; 
and  upon  application  of  plaintiffs  and  for  good  cause  shown  it  is 
further  ordered  and  decreed  that  advertisement  of  sale  in  a  German 
newspaper  be  hereby  dispensed  with. 

No.  315.     Order  of  sale. 

The  State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

Whereas,    At    a    term    of    the    Court    of    Common    Pleas,    held    at 

,  in  and  for  said  county,  on  the  day  of  ,  A.  D. 

one  thousand  nine  hundred  ,  in  the  cause  of  H.  S.  B.  et  al. 

plaintiffs,  and  J.  G.  T.  et  ah  defendants,  it  was  ordered  and  decreed 
as    follows,    to-wit: 

That  the  plaintiffs,  H.  S.  B.  and  J.  E.  B.,  recover  from  the  defend- 
ants, J.  G.  T.  and  V.   T.,  the  said  sum  of  $ ,  and  their  costs 


MEKWTNE   ON    REAL   ACTIONS.  482 

herein  expended;    that  said  sum  of  $ bear  interest   from   the 

date    of    this   judgment    and    decree    ( ,    19 ),    at    the    rate 

of per  cent,  per  annum  until  paid,  and  that  if  not  paid  within 

three  days  that  execution  issue  therefor,  and  it  is  further  ordered, 
adjudged  and  decreed  that  unless  the  defendants,  J.  G.  T.  and  V.  T., 
shall,  within  three  days  from  the  entry  of  this  decree  pay,  or  cause 
to  be  paid  to  the  clerk  of  this  court  the  costs  of  this  case,  and  to 
the  plaintiffs  herein  the  said  sum  so  found  due  as  aforesaid  with  inter- 
est thereon   at  per   cent,   per  annum    from    the   day   of 

,  19 ,  then  the  equity  of  redemption  of  the  said  defendants, 

J.  G.  T.  and  V.  T.,  shall  be  foreclosed  and  said  premises  shall  be  sold, 

and  an  order  of  sale   issue   to   the   sheriff  of  County,   Ohio, 

directing  him  to  appraise,  advertise  and  sell  said  premises  as  upon 
execution,  free  and  clear  from  any  dower  of  the  said  V.  T.,  and  report 
his  proceedings  to  this  court  for  further  order,  the  following  described 

lands  and  tenements  situated  in  the  County  of  ,  in  the  State 

of  Ohio  and  in  the  of  .  and  bounded  and  described 

as  follows:    (Here  insert  description  of  premises). 

We  Therefore  Command  You,  That  you  proceed  to  carry  said 
order,  judgment  and  decree  into  execution  agreeably  to  the  tenor 
thereof,  and  that  you  expose  to  sale  the  above  described  real  estate, 
under  the  statute  regulating  sales  on  execution,  and  that  you  apply 
the  pioceeds  of  such  sale  in  satisfaction  of  said  judgment  and  decree, 
with-  costs  and  interest,  as  specified  therein;  and  that  you  make 
report  of  your  proceedings  herein  to  our  Court  of  Common  Pleas 
within  sixty  days  from  the  date  hereof,  and  bring  this  order  with 
you.  And  I  certify,  under  seal  of  court,  that  the  description  of  prop- 
erty herein  is  correctly  copied  from  the  records  of  this  case  on  file 
in  this   office. 

Witness  my  signature  as  clerk  of  our  said  Court  of  Common  Pleas, 

and  the  seal  of  said  court,  at ,  Ohio,  this day  of , 

A.    D.   one   thousand   nine   hundred  

J.  W.  M.,  Clerk. 

No.   316.     The   appointment   of   appraisers   and   oath   of   ap- 
praisers. 

The  State  of  Ohio,  County,   ss.: 

To  L.  D.   H..   F.   C.  M.  and  C.   A.   D..   freeholders  of  County. 

State  of  Ohio: 

Whebeas,     on     the    day     of    .     A.     D.     19 , 

H.    S.   B.    et   ah   filed    in    the   Common   Pleas   Court   of   said   

County,  a  petition,  vs.  J.  G.  T.,  et  al.  praying  said  court  for  an  order 
to  sell   certain    real   estate   described    in   said    pei^-jn,   situate   in    the 

County  of ,  and  State  of  Ohio,  and of .    (Here 

insert  description   of  real   estate.) 

A\:>    Whebeas,    afterward,    to-wit:    at    the    term    of    said 

court,    A.    D.    19 ,    such    proceedings    were    had    upon    paid    petition 

by  said  court,  that  the  sheriff  of  County,  was  ordered  to  sell 


4bo  FORMS. 

said  real  estate,  as  upon  judgments  and  executions  at  law.  Now, 
therefore,  according  to  the  statute  in  such  cases  made  and  provided, 
I  do  hereby  call  and  appoint  you,  the  said  L.  U.  B.  and  F.  C.  M.  and 
C.  A.  D.,  an  inquest,  and  do  require  you,  on  oath,  forthwith  to  view, 
estimate  and  appraise  the  real  value  of  said  premises,  in  money,  and 
return  to  me  your  doings,   under  your  hands  and  seals. 

Given  under  my  hand  and  seal,  this  day  of  ,  A.  D. 

19 .  C.  A.  P.,  Sheriff.      (Seal.) 

Personally  appeared  before  me,  C.  A.  P.,  sheriff  of County, 

as  aforesaid,  the  above  named  L.  D.  B.,  F.  C.  M.  and  C.  A.  D.,  ap- 
praisers aforesaid,  who  are  judicious,  disinterested  freeholders,  and 
citizens  of  said  County  of  ,  and  were  personally  sworn  accord- 
ing to   law,   to  discharge  the  duties  of  said  appointment. 

Witness  my  hand  and  seal,  this  day  of ,  A.  D.  19 . 

C.  A.  P.,  Sheriff,  (Seal.) 

No.  317.    Appraiser's  report. 

To  C.  A.  P.,  Sheriff  of  County,  Ohio,  as  aforesaid: 

In  pursuance  of  the  foregoing  appointment,  we  have  proceeded  to 
view  the  real  estate  and  premises  described,  and  from  actual  view 
of  the  same,  we  do  estimate  the   real   value  thereof   in  money   to  be 

$ • 

Given  under  our  hands  and  seals,  this day  of  ,  A.  D. 

19 .  L.   D.   B.      (Seal.) 

F.  C.  M.     (Seal.) 
C.  A.  D.     (Seal.) 

No.  318.     Proof  of  publication. 

State  of  Ohio,  County,  ss.: 

D.    E.    D.,    cashier    for    The    ,    a    newspaper    published    at 

>  County,  Ohio,  personally  appeared  and  made  oath 

that   the  attached   printed   advertisement   was    published    for  

consecutive  weeks  in  said  newspaper  from  and  after  ,  19 . 

and  that  said  paper  is  of  general  circulation  in  said  county  and 
State.  D.  E.  D. 

* 

Subscribed  and  sworn  to,  this  day  of  ,  19 . 

N.  H.  R., 
Notary  Public  in  and  for  County.  Ohio. 

No.  319.     Legal  notice  of  sale  of  real  estate. 

Court  ok  Common  Pleas. County,  Ohio. 

H.   S.   B.   and  J.   E.   B.,   Plaintiffs. 

vs.  No.  . 

J.   G.    T.   and   V.   T..   Defendants. 

In  pursuance  of  an  order  of  sale  from  said  court  to  me  directed, 
I  will  offer  for  sale    at  public  auction    at  the  door  of  the  court  house 


MERWINE   ON   REAL    ACTIONS.  484 


in  the  city  of  ,  Ohio,  on  ,  the  day  of  , 

A.  D.  19 ,  at  o'clock  — m..  the  following  described  real  estate, 

situate  in  the  County  of ,  and  State  of  Ohio,  and  in  the  

of  ,   and   bounded   and   described   as   follows,    to-wit:       (Here 

insert  description  of  real  estate). 

Said  property  is  located  and  known  as  No.  ,  Ave., . 

Appraised    at    $ . 


Terms  of  sale,  cash. 


C.  A.  P., 
Sheriff  of  County,  Ohio. 


K.  M.  and  S.,  Plaintiffs'  Attorneys. 

No.  320.     Sheriff's  return. 

The  State  of  Ohio,  County,  ss.: 

In  obedience  to  the  command  of  the  order  of  sale  hereto  annexed, 

I  did,  on  the  day  of  ,  A.  D.  one  thousand  nine  hundred 

,  summon  L.  D.  B.,  F.  C.  M.  and  C.  A.  C,  three  disinterested 


freeholders,  residents  of  said  county,  who  were  by  me  duly  sworn  to 
impartially  appraise  the  lands  and  tenements  therein  described,  upon 

actual  view,  and  afterward,  on  the  day  of  ,   A    D.  one 

thousand    nine    hundred    ,    said    appraisers    returned    to    me, 

under  their  hands  and  seals,  that  they  did,  upon  actual  view  of  the 
premises,  estimate  and  impartially  appraise  the  real  value  in  money 
of  the  same  at  % .  A  certified  copy  of  said  appraisal  I  forth- 
with   deposited   in   the    office   of   the    clerk    of    the   Court    of   Common 

Pleas  of  said   county.     And   on  the  day  of  ,  A.   D.   one 

thousand   nine   hundred   ,    I    caused   to   be   advertised    in   the 

(a  newspaper  printed  and  published  and  of  general  circula- 
tion   in    County,    Ohio),    said    lands    and    tenements    to    be 

sold  at  public  sale  at  the  door  of  the  court  house  of  said  county,  on 

the  day  of  ,  A.  D.  one  thousand  nine  hundred  , 

at    o'clock    — m.,    of    said    day.      And    having    advertised    the 

said  lands  and  tenements  for  more  than  thirty  days  previous  to 
the  day  of  sale,  to-wit:  five  consecutive  weeks  on  the  same  day 
of  the  week  in  each  week;   and  in  pursuance  of  said  notice  I  did,  on 

said  day  of  ,  A.  D.  one  thousand  nine  hundred , 

at  the  time  and  place  above  mentioned,  proceed  to  offer  said  lands 
and  tenements  at  public  sale,  at  the  door  of  said  court  house,  and  then 
and   there   came    H.   G.   B.   and    J.    E.   B.,   who   bid    for   the   same    the 

sum   of  % ,  and   said  sum  being  more   than   two-thirds  of  the 

appraised  value  thereof,  the  said  H.  S.  B.  and  J.  E.  B.  being  the 
highest  and  best  bidders  therefor,  I  then  and  there  publicly  sold 
and    struck    off    said    lands    and    tenements    to    them    for    said    sum 

of  $ . 

C.  A.  P., 

Sheriff. 


485  FORMS. 

No.  321.     Entry  confirming  sale,  ordering  deed  and  distrib- 
uting of  funds  of  sale. 

Court  of  Common  Pleas, county,  Ohio. 

H.  S.  B.  and  J.  E.  B., 
Plaintiffs, 

vs.  No.  . 

J.   G.    T.   and   V.   T., 
Defendants. 

This  day  this  cause  Game  on  to  be  heard  on  motion  of  the  plaintiffs 
for  confirmation  of  sale,  made  under  the  former  order  of  this  court, 
and  on  the  plaintiffs'  producing  the  sheriff's  return  of  the  sale 
made  under  said  former  order  of  this  court,  and  the  court,  on  careful 
examination  thereof,  and  of  all  of  the  proceedings  of  said  sheriff, 
and  the  evidence  adduced,  being  satisfied  that  the  same  have  been 
in  all  respects  in  conformity  to  law  and  the  former  orders  of  this 
court,  it  is  ordered  that  said  proceedings  and  the  sale  be,  and  they  are 
hereby    approved  and  confirmed. 

It  is  further  ordered  that  said  sheriff  convey  to  the  said  H.  S.  B. 
and  J.  E.  B.  a  good  and  sufficient  deed  to  said  property  according 
to  law;  and  that  said  H.  S.  and  J.  E.  B.  be,  and  they  are  nereoy 
subrogated  to  all  the  rights  of  the  lienholders  of  said  premises, 
so  far  as  may  be  necessary  for  the  protection  of  their  title,  and  a 
writ  of  possession  is  awarded  to  put  them  in  possession  of  said 
premises. 

It  is  therefore  ordered  that  the  clerk  cause  satisfaction  of  tne 
mortgage  herein  sued  upon  to  be  entered  upon  the  records  thereof  in 
the    office    of    the    recorder    of   County,    Ohio. 

It   is   further  ordered   that    M.    L.    B.,    as    trustee   of   J.    G.    T.,    be, 

and  he  is  hereby    allowed  the  sum   of  $ as  compensation  for 

his  services  as   such  trustee  herein,  the  same  to  be  paid  out  of  the 
proceeds    of   said    sale. 

And  the  court  coming  now  to  distribute  the  proceeds  of  said  sale, 

amounting  to  $ ,  it  is  ordered  that  the  sheriff,  out  of  the  money 

in   his    hands,    pay 

First:  To  the  treasurer  of  this  county  the  general  taxes  and 
penalties  due   on  said   premises,   amounting  to   $ . 

Second:  The  treasurer  of  this  county  the  amount  of  the  street 
assessment    and.  interest    thereon,    due    and    payable,    amounting    to 


Third:     The  costs  herein  taxed  at  $ . 

Fourth:  To  L.  M.  B.  the  fee  herein  allowed  him  for  services  as 
trustee    $• . 

Fifth:  To  H.  S.  B.  and  J.  E.  B.  to  be  applied  upon  their  judg- 
ment herein  rendered,  the  balance,  $ . 


MERWINE    ON    REAL    ACTIONS.  486 

No.  322.     Sheriff's  deed  in  foreclosure. 

To  all  Persons  to  whom,  these  Presents  shall  come.  Greeting: 

Whereas,  on  the day  of ,  19- ,  H.  S.  B.  and  J.  E.  B., 

plaintiffs,  filed  their  certain  petition  and  then  and  thereby  com- 
menced   a   civil    action    in    the    Court    of    Common    Pleas    of   

County,    Ohio,   against    J.   G.    T.    et   al,   and    numbered   on    the    docket 

of  said  court  as  case  No.  ,   praying  therein,  among  other  things, 

for  the  sale  of  certain  real  estate  in  said  petition  and  hereinafter 
described ;    and 

Whereas,   such  proceedings   were  had   in  said   action,    that  by  the 

consideration  and  judgment  of  said  court  on  the  day  of  , 

19 ,  at  the  term,  19 ,  said  H.  S.  B.  and  J.  E.  B.  recov- 
ered a  judgment  against  the  said  J.  G.  T.  et  al,  for  the  sum  of 
$ and    costs   of   suit;    and 

Whereas,  it  was  then  and  there  further  ordered,  adjudged  and 
decreed  by  said  court  in  said  action,  that  unless  the  said  defendants, 
J.  G.  T.  et  al,  should  pay  the  costs  of  said  suit,  and  to  said  H.  S.  B. 
and  J.  E.  B.  the  amount  so  found  due  within  three  days  from  the 
entry  of  said  decree,  said  premises  should  be  sold  and  an  order  of  sale 
should  issue  therefor  to  the  sheriff  of  said  County  of  ■ — ■ — ,  com- 
manding him  that  he  should  cause  the  lands  and  tenements  in  said 
petition  and  order  mentioned  and  hereinafter  described,  to  be  ap- 
praised, advertised  and  sold  according  to  law,  and  return  his  proceed- 
ings to  said  court;    and 

Whereas,    afterwards,    on    the    day    of    ,    19 ,    in 

pursuance  of  said  order  and  judgment  of  said  court  mounded  thereon, 
an  order  of  sale  issued  from  said  court  in  said  cause  directed  to 
C.  A.  P.,  sheriff  of  County,  Ohio,  commanding  him  to  exe- 
cute said  order,  and  in  all  things  to  be  governed  by  the  provisions 
of  the  statute  in  such  case  made  and  provided,  and  of  said  order  with 
his  proceedings  thereon  he  should  make  due  return;   and 

Whereas  I,  C.  A.  P.,  sheriff  aforesaid,  having  caused  said  premises 
to  be  appraised  and  a  copy  of  the  appraisement  to  be  duly  filed  in 
the  office  of  the  clerk  of  said  court,  and  having  advertised  the  time 

and  place  of  selling  the  same  in  ,   a  newspaper  printed  and 

of  general  circulation  in  said  county,  for  a  period  of  thirty  days 
prior  to  the  said  sale,  and  otherwise  complied  with  said  order  and  the 
provisions   of  the   statute   in   such   cases   made   and  provided,   did,   on 

the  -       -   day   of  ,   19 ,   at  the  door   of  the   court   house   in 

said    county,    at     o'clock    —  m.    of    said    day,    expose    to    sale 

at   public  auction   the   premises  hereinafter  mentioned,   and  thereupon 

— ,  having  bid  for  the  said  premises  the  sum  of  % ,  and 

said  sum  being  the  highest  and  best  bid  offered  for  the  same,  and 
being  more  than  two-thirds  the  appraised  value  thereof,  the  said  prem- 
ises were  then   and   there  struck  off  to  him;    and 

Whebeas,    the    said    court,    at    its    term,    19 ,    having 

examined  the  proceedings  aforesaid  in  the  premises  under  said  order 
of  sale,  and  being  satisfied  that  the  sale  had  been  made  in  all  respects 


487  FORMS. 

in  pursuance  to  said  judgment  and  order  of  sale,  and  in  accordance 
with  the  provisions  and  requisitions  of  the  statute  regulating  such 
sales,    did    order    that    said    sale    should    he    confirmed,    and    that    the 

said  sheriff  of  County,  Ohio,  should  convey  the  said  premises 

by  deed  in  lee  simple  to  the  said  , 

Now     Know    Ye,    That    1,    the    said   C.    A.    P.,   sheriff   of   


County,  Ohio,  as  aforesaid,  by  virtue  of  said  judgment,  order  of  sale, 
sale  and  confirmation,  and  of  the  rtatute  for  such  cases  made  and 
provided,   and    for  and    in   consideration   of   the    premises   herein,   and 

the'  sum   of   $ ,    which    I    acknowledge   to    have    received    from 

the   purchaser   above   named,    do   hereby    grant,   sell   and    convey    unto 

him,  the  said  ,  his  heirs  and   assigns,   forever    the  following 

described    real    estate    situate    in    the    County    of    ,    State    of 

Ohio,    and    in    the   ■ of   ,    (here    insert    description    of 

real  estate),  together  with  all  the  privileges  and  appurtenances 
thereto  belonging,  and  all  the  right,  title  and  interest  of  the  said 
J.  G.  T.  et  al.  and  of  all  other  parties  to  said  suit  of  and  to  the  same. 

To  Have  ami  to  Hold  the  premises  aforesaid  unto  the  said  , 

his   heirs   and   assigns     forever,   as   fully   and   completely   as   the   said 

C.  A.  P.,  sheriff  of  County,  Ohio,  by  virtue  of  said  judgment, 

order  of  sale,  sale  and  confirmation  and  of  the  statute  made  and 
provided  for  such  cases,  might  or  should  sell  and  convey  the  same. 

In  Witness    Whereof,  I  have  hereunto  set  my  hand  and  seal,  this 

day  of  ,  19 . 

,      (  Seal.  ) 

Sheriff    of   County,    Ohio. 

State  of  Ohio,  County,  ss. : 

Personally  appeared  before  me,  a  notary  public  within  the  afore- 
said  county,   the   above   named   C.   A.   P.,   sheriff   of County, 

Ohio,  the  grantor  in  the  above  deed  of  conveyance,  who  acknowl- 
edged the  signing  and  sealing  of  the  same  to  be  his  voluntary  act  and 
deed   for  the  uses  and  purposes  therein  mentioned. 

In  Witness    Whereof.  I  have  hereunto  set  my  hand  and  seal,  this 

day    of   ,    19 

,     (Seal.) 

Xotary    Public.    County.    Ohio. 

No.  323.     Petition  for  foreclosure  where  party  assumes  mort- 
gage and  agrees  to  pay  it. 

Court  of  Common  Pleas.  County.  Ohio. 

H.    T.    C,   Plaintiff, 

vs.  No.  . 

M.  A.  R.,  and  S.  R.,  Petition, 

her  husband,  Defendants. 

1.     First  Cause  of  Action: 

Plaintiff  fays  that  M.  A.  R.  is  indebted  to  him  in  the  sum  of 
$ ,  with  interest  thereon  at  the  rate  of per  cent,  per 


MEBWINE    OX    REAL    ACTIONS.  488 


annum,    payable    annually,    from    the    day    of   ,    19- 


that  on  or  about  the  said  day  of  ,  19 ,  one  J.  M.  L., 

as  assignee  of  S.  R.  and  M.  A.  R.,  in  consideration  of  the  sum  of  $ , 

conveyed  to  said  M.  A.  R.  the  following  described  real  estate,  sit- 
uated  in   the   County   of  ,   in   the   State  of   Ohio,   and    in   the 

; of  ,  and  bounded  and  described  as   follows-.      (Here 

describe   real   estate). 

Plaintiff    further    says    that    said    conveyance    was,    among    other 
things,    made     "subject    to   the    mortgage    of   H.    T.    C,   given    by    one 

A.    L.    R.,    dated   ,    19 ,    which    is    assumed    by    the 

grantee  herein,  to  the  amount  of  $ ,  being  the  amount  due  said 

H.  T.  C.  from  the  proceeds  of  this  sale;"  and  that  said  agreement  to 
assume  and  pay  said  mortgage  was  made  as  a  part  of  the  said 
consideration  for  the  purchase  price  of  said  real  estate. 

There  have  been  no  payments  made  upon  said  amount  so  assumed, 
and  there  is  due  and  payable   to  plaintiff  from  the  defendant,   M.  A. 

R.,    on   her   assumption    of   said    indebtedness,    the   sum    of   $ , 

with    interest    thereon    at per    cent,    per    annum,    payable 

annually  from  the  day  of  ,  19 ,  which  he  claims. 

2.     Second  Cause  of  Action: 

For  a  second  cause  of  action  herein,  plaintiff  says  that    on  or  about 

the  day  of  ,  19 ,  one  H.  A.  L.  and  W.   F.   B.,   for  a 

valuable  consideration,  sold  and  conveyed,  by  deed  in  fee  simple, 
to  S.  R.  and  M.  A.  R.,  the  following  described  real  estate,  and  being 
the  real  estate  described   in  the  first  cause  of  action,  situated  in  the 

County  of  ,  in  the  State  of  Ohio,  and  in  the  of  , 

to-wit:      (Here  describe   it). 

Plaintiff   alleges    that     on    the   — ■ —    day    of   (    19 ,    one 

A.  L.  R.,  who  was  then  the  owner  of  the  aforesaid  real  estate, 
in  order  to  secure   the   payment  of  a   certain    promissory   note  given 

for    the    purchase   money    of    said    real    estate,    dated    on    said    

day   of  ,   19 ,    for   the   sum   of   $ ,   bearing   interest 

at  the  rate  of  per  cent,  per   annum,   payable  annually,   and 

due   and   payable   in   years   after  the   date    thereof,   executed 

and  delivered  to  plaintiff  his  certain  mortgage  deed,  and  thereby 
conveyed  to  plaintiff  a  certain  parcel  of  real  estate  of  which  the  real 
estate  above  herein  described  formed  a   part. 

Paid  mortgage  had  a  condition  therein  written,  that  if  said  note 
should  not  be  paid  when  due  as  aforesaid,  said  mortgage  deed  should 
become  absolute.  Said  note  has  not  been  paid  and  said  mortgage 
deed  has  become  absolute. 

Said    mortgage    was    left    with    the    recorder    of   County, 

Ohio,  for  record  on  the  day  of  ,  19 ,  at  o'clock 

m.    of    said    day,    and    was     by    said    recorder     duly    recorded    in 

Mortgage    Record    ,    pages    ,    of    the    County, 

Ohio     records. 

Plaintiff  alleges  that  at  the  time  of  the  conveyance  of  said  prem- 
ises by  the  said  L.  and  the  said  B.  to  the  said  S.  R.  and  M.  A.  R., 
the  said    S.   R.   and   M.   A.   R.,   agreed   in   said   deed   to   assume,   and 


489 


FORMS. 


they   did   assume,    the    payment   of   $- 


of   said   mortgage   debt, 


and   that   said   assumption   of   said   part   of  said   mortgage   was   made 

as  a  part  of  the  purchase  price  of  said   premises;    that  on   the  

day  of  ,  19 ,  said  S.  R.  and  M.  A.  R.,  by  deed  of  assign- 
ment, conveyed  said  premises  with  other  real  estate  to  J.  M.  L.,  as 
assignee  in  trust  for  the  benefit  of  their  creditors,  and  thereafter, 
said  real  estate  was,  by  said  assignee,  under  an  order  oi  the  Probate 
Court  of  this  county,  sold  to  the  defendant,  M.  A.  R.,  for  the  sum  of 

$ ,    and    said    real    estate    was,    on    or    about    the   day    of 

,  19 -,  by  the  deed  of  said  assignee,  conveyed  to  her,  and 


in  said   deed,   the   said  M.   A.  R.  agreed  to  assume,   and   did   assume, 
as  a  part  of  the  said  consideration  for  said  sale  and  conveyance,  the 

sum   of   $ of   the   mortgage   indebtedness    on   said    real    estate 

as   above   herein   set  out,   together  with   the   interest   thereon,   at   the 
rate   of  per  cent.,   payable   annually   from   said  day  of 


19- 


Said  mortgage    is   a   valid   and    subsisting   lien   on    the    real   estate 

above    described    for    said    sum    of    $ ,    with    interest    on    said 

sum  at  the  rate  of  per  cent,   per  annum,   payable   annually 

from  the day  of  ,  19 ,  and  said  defendant  has  failed 

to  pay  the  same. 

Wherefore,    plaintiff   prays   judgment   for   $ ,    with    interest 

at  per  cent,  annually  from  the day  of  ,  19 — — ; 

that  said  mortgage  be  foreclosed,  and  said  premises  sold,  as  upon 
execution,  to  satisfy  the  judgment  so  to  be  obtained,  and  tor  such 
other  and  further  relief  as  equity  and  the  nature  of  the  case  may 
require.  , 


Attorneys  for  Plaintiff. 


The  petition  should  be  verified. 


No.  324.  Petition  for  foreclosure  of  a  mortgage  where  the 
mortgage  has  been  assumed  by  a  previous  grantee  of  real 
estate. 


Court  of  Common  Pleas, 


County,  Ohio. 


M.  E.  T., 


Plaintiff, 


vs. 


No. 


Petition. 


F.  N.  B.,   H.   R.  F., 

J.  C,  C.   P.  L.  B.,  Jr., 

W.    D.   D.,   G.   H..   H.  C.   T. 

and  E.  M.,  as  administrators 

of  the  estate  of  ,  deceased, 

Defendants. 

No^v  comes  M.  E.  T.,  plaintiff,  and  for  her  petition  herein  says: 
1.     For    her    first    cause    of    action    herein,    plaintiff    says    that     on 

the day  of  ,  ,  the  defendants,  G.  L.  H.  and  S.  E. 

H.,  executed  and   delivered  to   one   J.  N.  C.    their  joint   and   several 


MERWINE    ON    REAL    ACTIONS.  490 

promissory  note,  of  which  note  the  following  is  a  copy,  with  all  the 
credits  and  indorsements  thereon,  to-wit:       (Here  copy  note). 

Said  note  is  endorsed  as  follows:  "Pay  M.  E.  T.,  or  order, 
without  recourse  on  me,  J.  N.  C,"  and  credited  as  follows:  (Here 
copy    credits). 

Said  note  is  secured  by  mortgage  on  the  real  estate  last  described 
in  the  cause  of  action  herein.  At  the  time  of  the  execu- 
tion and  delivery  of  said  note,  the  said   G.  L.  H.  and  S.  E.  H.   were 

the  owners  of  said  real  estate,  and  on  the  day  of  ,  , 

by  deed  of  general  warranty,  sold  and  conveyed  said  real  estate  to 
the  defendant  J.  C,  who  thereupon,  by  agreement  in  writiug  set  forth 
in  said  deed,  agreed  by  and  with  the  said  G.  L.  H.  and  S.  E.  H., 
their  heirs  and  assigns,  as  part  of  the  consideration  thereof,  to 
assume,    and    he    did    assume,    the    payment    of   the    principal    and   all 

interest  on  said  note  from  the  day  of  ,  ,  together 

with  all  the  assessments  which  were  a  lien  on  said  premises  for  the 

improvement  of  in  said  city.     Said  deed  is  recorded  in  D.  B. 

-t  page  of  the  deed  records  of  said  county.  ■ 

On  the  day    of  ,   ,   the  said   J.   C.   died  intestate, 

and  the  said  H.  T.  C.  and  E.   D.  were,    -.n  the  ■  day  of  , 

by  the  Probate  Court  of  said  county,  duly  appointed  administrators 
of  his  said  estate,  and  said  administrators  thereupon  duly  qualified 
and  entered  upon  their  duties  as   such  administrators. 

On  the  day  of  ,  the  said  J.  C.  and  his  wife,  ■ , 

by  deed  of  general  warranty,  sold  and  conveyed  said   real  estate  last 

described   in  said  cause  of  action  herein,  to  the   defendants, 

G.  H.  and  W.  D.  D.,  who  thereupon,  by  agreement  in  writing  set  forth 
in  said  deed,  agreed  by  and  with  the  said  J.  C.,  his  heirs  and  assigns, 
as  part  of  the  consideration  thereof,  to  assume,  and  they  did  assume, 
the   payment    of   the   principal    of   said    note   and   all    interest    thereon 

from    the    day    of   ,    together    with    all    the    assessments 

that  were   a   lien  on   said   premises   for  the   improvement   of  

Street  in  said   city.     Said  deed  was  duly  recorded  in  D.   B.,  

page of  the  deed  records  of  said  county. 

On    the day   of   ,    the   said   W.    D.    D.    and    M.    J.    D., 

his  wife,  and  the  said  G.  H.  and  M.  W.  H.,  hi3  wife,  by  deed  of 
general    warranty,    sold    and    conveyed    the    real    estate    last    described 

in  said  — cause  of  action  herein,  to  the  defendant,  C.  P.  L.  B., 

Jr.,  who  thereupon  by  agreement  in  writing  set  forth  in  said  deed, 
agreed  by  and  with  the  said  G.  H.  and  W.  D.  D.,  their  heirs  and 
assigns,  as  a  part  of  the  consideration  thereof,  to  assume  and  he 
did   assume    thr-    payment   of   the   principal    and    interest   on    said   note 

rrom    and    after    the    day    of ,    together    with    all 

the  assessments  which   were  a  lien  on   said   lot    for  the  improvement 

of  Street   in   said   city.    Said    deed    was   duly   recorded   in    D. 

B.    ,    page  of   the   deed   records   of  said   county. 

On    the  day   of  ,   said   C.    P.    L.    B.,   Jr.,   by    deed 

of  general  warranty,  sold  and  conveyed  the  real  estate  last  described 
in   said  cause   of   action    herein,  to   the   defendant   F.    N.    B. 


491  FORMS. 

who  thereupon,  hy  agreement  in  writing  set  forth  in  said  deed,  agreed 
by  and  with  the  said  C.  P.  L.  B.,  Jr.,  his  heirs  and  assigns,  as  a 
part  of  the  consideration  thereof,  to  assume  and  he  did  assume  the 
payment  of  the  principal  and  all  interest  on  said  note,  together  with 
all  the  assessments  that  were  a  lien  on  said  premises  for  the  im- 
provement of  Street   in   said   city.     Said   deed   was    recorded 

in  D.  B.  ,  page of  the  deed  records  of  said  county. 

Said  defendant,  F.  N.  B.,  is  the  present  owner  of  said  real  estate 
last   herein   described. 

Plaintiff  is  the  legal  owner  and  holder  of  said  note,  and  there 
is  due  her  thereon  from  the  defendant  F.  N.  B.,  as  principal,  and 
the  said  H.  C.  T.  and  E.  D.,  as  administrators  of  the  estate  of 
J.   C,    deceased,    W.   D.    D.,    G.    H.,   C.   P.   L.    B.,    Jr.,   G.   L.    H.   and   S. 

E.    H.,    as    sureties,    the    sum    of    $ with    interest    on    said    sum 

from  the  day  of  ,  at  the  rate  of  per  cent,  per 

annum,  payable  annually. 

2.     For   a   cause   of  action   herein,    plaintiff   says   that   at 

the  time  of  the  execution  and  delivery  of  the  note  described  in  said 
first  cause  of  action  herein,  and  to  secure  the  payment  of  the  same, 
the  defendants,  G.  L.  H.  and  S.  E.  H.,  executed  and  delivered  to 
the  said  J.  N.  C.  their  certain  mortgage  deed  and  thereby  conveyed 
to   him,    his    heirs   and   assigns    forever,    the    following   described    real 

estate   in   the  County   of  ,    in  the   State   of   Ohio,   and    in   the 

City  of  :      (Here  describe   it). 

Said  mortgage  contained  a  condition,  that  if  the  said  G.  L.  H. 
and  S.  E.  H.  should  pay,  or  cause  to  be  paid  to  said  J.  N.  C,  Irs 
heirs  and  assigns,  the  note  described  in  the  first  cause  of  action 
herein,  when  the  same  should  become  due,  with  the  interest  on 
the  same,  then  said  mortgage  should  become  void,  otherwise  to  be 
and    remain    in    full    force   and    virtue    in    law    forever. 

By  reason  of  the  non-payment  of  said  promissory  note  in  said 
first  cause  of  action  herein,  and  the  interest  due  thereon,  the  said 
mortgage  has  become  absolute. 

On    the   day    of ,    at   o'clock   m.,    said 

mortgage  deed  was  delivered  to  the  recorder  of  said  — ■ —  County, 

Ohio,    for    record,    and    was    duly    recorded    on    the    day    of 

,   in  Mortgage  Record  ,  pp.  of  said  county. 

On   the clay    of   ,    said    mortgage   was,    for    value 

received,  duly  assigned  by  the  said  J.  N.  C.  to  the  plaintiff  by  an 
assignment  in  writing,  which  assignment  was,  by  the  recorder  of 
said  county,  duly  entered  upon  the  records  of  said  mortgage  accord- 
ing to  law. 

The  defendant,  L.  C.  B.,  wife  of  the  defendant.  F.  N.  B.,  as 
against  said  mortgage,  is  not  entitled  to  dower  in  said  real  estate 
last  herein   described. 

Said  defendant,  H.  R.  B.,  has,  or  claims  to  have,  some  lien  or 
interest  in  paid  premises,  of  the  nature  and  amount  of  which  plaintiff 
is  not  informed,  but  she  avers  that  said  claim  or  lien  if  any,  is  sub- 
ordinate to  her  mortgage  lien. 


MERWLNE   ON    REAL   ACTIONS. 


'd02 


Wherefore  plaintiff  prays  that  said  defendant,  H.  R.  F.,  bo  re- 
quired to  set  forth  her  said  claim  on  said  premises  or  be  forever 
barred;  that  she  may  have  judgment  against  said  F.  N.  B.,  C.  P. 
L  B  Jr  W.  D.  D.,  G.  H.,  H.  C.  T.,  and  E.  D.,  as  administrators 
of  the  estate  of  J.  C.,  deceased,  G.  L.  H.  and  S.  E.  H.,  for  said  sum 

of  $ with  interest  thereon  from   the  ■ day  of  , 

at per  cent,   per  annum,   payable   annually;    that  said    mortgage 

deed  be  foreclosed,  said  premises  sold  as  upon  execution,  and  the 
proceeds  of  said  sale  be  paid  upon  said  mortgage  debt,  and  for  such 
other  and  further  relief   as  equity  and  the  nature  of  the   case  may 

require.  "  ■ 

Attorneys    for   Plaintiff. 

Duly  verified  as  in  other  actions. 

No.  325.    Form  for  a  petition  for  the  reformation  of  a  mort- 
gage, foreclosure  of  the  same  and  marshal  of  liens. 

Court  of  Common  Pleas,  County,  Ohio. 


Plaintiff, 
vs. 

and  ,  bis  wife, 

and , 


Petition. 


Defendants. 

1.  First  cause  of  action. 

Plaintiff   says   that  there   is   due   him  from   the  said  ,   on 

the  promissory  note  of  said  ,  the  sum  of  $ ,  with  in- 
terest   from    the    day    of    ,    19 ,    and    of    which 

promissory  note  the  following  is  a  copy  with  all  the  credits  and  in- 
dorsements thereon,  to-wit:  (Here  set  forth  a  copy  of  the  note,  with 
all  credits  and  indorsements  thereon).  Said  note  is  endorsed  and 
credited  as  follows,  to-wit:  (Here  allege  the  same  as  they  appear 
on  the  note). 

2.  Second   cause   of   action. 

Plaintiff    says    that    to    secure    payment    of    the    above    described 

promissory  note,  dated  on  the  day  of  ,  19 ,  and 

made  by  the  said  payable  to  the  order  of  the  said  , 

plaintiff,  as  follows:  (Here  state  the  time  at  which  said  note  be- 
came due  by  its  terms).  To  secure  the  payment  of  said  promissory 
note  hereinbefore  mentioned,  according  to  the  tenor  and  effect  thereof, 

the  said  together  with  his  said  wife,  the  defendant,  , 

duly  executed,   acknowledged  and   delivered  to   the   plaintiff,   the   said 

joining    with    her    said    husband    in    the    granting    part, 

the  signing  and   acknowledging  thereof,  their  certain  mortgage  deed, 

bearing   date   on   the   day    of   ,    19 ,   and   thereby 

intending    to    convey    to    the    plaintiff,    in    fee    simple,    free    from    all 

rights,  including  that  of  dower  of  said  in  and  to  the   same, 

the   following  described  lands,  tenements  and  hereditaments,  situated 


493  FORMS. 

in  the  Count y  of  ,   and  State  of  Ohio,   to-wit:     Being  lot  No. 

40  in  Downs'  Addition  to  city,  as  said  lot  is  numbered  and 

delineated  in  said  recorded  plat  thereof,  of  record  in  Plat  Book  , 

page  ,  recorder's  office,  County,  Ohio,  but  by  the  mutual 

mistake  and  inadvertence  of  all  the  parties  thereto,  said  mortgage 
described  and  conveyed  lot  Xo.  42  in  said  Downs'  Addition  to  said 
city  as  aforesaid. 

Said    mortgage    was    delivered    to    the    recorder    in    the    recorder's 

office   of    said    county    for    record,   according    to   law,   on   the  

day  of  ,  19 ,  at o'clock,  m.,  and  was  duly  re- 
corded in  book  ,  page  ,  of  the  records  in  his  said  office. 

Said  deed  of  mortgage  has  a  condition  thereunder  written  that 
in  case  the  said  —  should  pay  or  cause  to  be  paid  said  promis- 
sory note  when  and  as  it  should  become  due,  then  said  deed  should 
be  void,  otherwise  to  be  and  remain  in  full  force.  Said  note  is 
past  due  and  unpaid  and  said  mortgage  has  become  absolute. 

The    said    defendant,    ,    claims    to    have    some    claim    upon 

or  interest  in  said  above  described  premises,  as  does  the  said  de- 
fendant   . 

Wherefore  plaintiff  asks  judgment  against  the  said  defendant, 
,    for   the   sum    of    $ ,   with   interest    on   said    sum    from 


the  day   of  ,   19 ;    also   that   said   mortgage  may 

be  reformed  and  corrected  by  proper  decree  of  this  court,  so  as 
to  conform  to  the  real  intention  of  said  parties,  and  that  when  said 
mortgage  is  so  corrected  and  so  reformed  that  the  same  may  be 
foreclosed   and   said  premises   sold   as   upon   execution   to   satisfy   said 

mortgage    indebtedness    from    the    said    and    the    judgment 

by  plaintiff  so  to  be  obtained,  and  that  the  said  and  

be  required  by  appropriate  pleadings  in  this  action,  to  set  forth  the 
nature  and  amount  of  their  respective  claims  and  liens,  if  any  they 
have,  on  said  real  estate,  and  that  the  respective  said  liens  and 
claims  of  the  plaintiffs  and  said  defendant  be  marshaled  and  deter- 
mined and  ordered  to  be  paid  by  the  court  out  of  the  proceeds 
of  the  sale  of  said  real  estate  in  the  order  of  their  respective  priori- 
ties, and  for  such  other  and  further  relief  as  equity  and  the  nature 

of   the  case  may  require.  , 

Attorney   for  Plaintiff. 

This   petition   should   be   verified   as    in   other   actions. 

(Note:     Adapted  from  Yaple's  Code  Practice). 

No.  326.     The  petition  in  an  action  to  declare  a  deed  a  mort- 
gage and  to  foreclose  the  same. 

Court  of  Commox  Pleas,  County,  Ohio. 

John    Doe,   Plaintiff, 

vs.  Petition. 

Richard   Roe,  Defendant. 

Plaintiff  avers  that   on   the  —   day  of  the   defend- 
ant,   Richard    Roe,    was    the    owner    of    the    following    described    real 


MEKWINE    ON    REAL    ACTIONS.  494 


estate    situate    in    the   County   of   ,    in    the    City    of , 

and  in  the  State  of  Ohio,  to-wit:  (Here  describe  it);  that  on  said 
day,    said    defendant    being    greatly    embarrassed    in    his    affairs    and 

desiring  to  borrow   the   sum   of  $ ,   applied   to   plaintiff   for   that 

purpose,  and  obtained  a  loan  from  him,  the  said  plaintiff,  for  the 
sum  of  $ ,  due  and  payable  months  after  date,  with  in- 
terest   at    per    cent.;    that    to    secure    such    loan    the    defendant 

executed  a  deed  to  said  plaintiff  for  the  above  described  real  estate, 
said  deed  being  absolute  in  form,  but  intended  by  both  the  parties 
thereto  to  stand  as  security  for  said   loan,  and  it  was  made   for  that 

purpose;    that  on   the  day  of plaintiff  entered    into 

possession  of  said  real  estate  under  said  deed,  and  has  applied  the 
rents    and    profits    thereof    to    his    own    use,    said    rents    and    profits 

amounting    to    the    sum    of    $ ;     that    the    time    has    expired    in 

which  defendant  was  required  to  pay  and  satisfy  said  sum  of  money 
so  borrowed  as  aforesaid,  and  that  by  reason  of  said  default  said 
sum    has   become   due,   and    said   mortgage   has   become   absolute.     On 

the  day   of  ,   19 ,   said    deed   was  left  for  record 

with    the    recorder    of    said    county,    and    was    by    him    duly    recorded 

in  Deed  Book  ,   page  ,  in  the  deed   records  of  his   office. 

Wherefore  plaintiff  prays  that  an  account  may  be  taken  of  the 
amount  due  from  said  defendant  to  plaintiff,  after  deducting  the 
rents  and  profits  aforesaid,  and  that  said  deed  be  declared  j,  mortgage 
and  that  the  same  may  be  foreclosed  and  said  real  estate  sold  as 
upon  execution  to  satisfy  the  same,  and  for  such  other  and  further 
relief  as   equity   and    the   nature  of  the   case  may   require. 


Attorney   for   Plaintiff. 
Verified  as  in   other  cases. 


CHAPTER  XIII. 

THE  LAW  AND  PROCEDURE  BY  WHICH  REAL  ESTATE 

IS  SOLD  BY  FORECLOSURE  OF 

MECHANIC'S  LIEN. 


Section. 

375.     The  origin  and  nature  of  the 

lien. 
370.     The    right    to    assert   the   lien 

may   be  waived. 

377.  The    lien    for    labor    and    ma- 

terial furnished  for  the 
improvement  of  real 
estate. 

378.  The    lien    on    contiguous    lots 

or    separate    buildings. 

379.  Duty  of  contractor  to  defend 

any  action  brought  to  en- 
force lien.  when. 

380.  How      lien      acquired — Notice 

to  owner   of  filing  lien. 

381.  Lien    for   work    and    labor    on 

roads,  streets,  sewers 
and  ditches  —  Liens  for 
same  work  on  an  improve- 
ment pro  rata. 

382.  The   owner   may   require   lien- 

holder  to  commence  suit, 
when.  , 

383.  Rights  and  liabilities  of  exec- 

utors and  married  women 
as  to  mechanic's  liens. 

384.  Subcontractor's      lien;       how 

acquired. 

385.  Owner    to     retain     subsequent 

payments   on   notice. 

386.  The  statement  to  be  filed  with 

reco.der  to  notify  fellow 
laborers. 

387.  Pro     rata     payment     of     sub- 

contractors   out    of    subse- 


Section. 

quent  payments  due  head 
contractor. 

388.  Copy     of      statement      to     be 

furnished  to  head  contrac- 
tor— His  duty— Priority  of 
lien. 

389.  Remedy        of       subcontractor 

when  his  contractor  or  the 
owner   refuses   to    pay. 

390.  When     and     how.    subcontrac- 

tor may  obtain  lien  on  the 
property  of  the  owner. 

391.  Such   lien  entitled  to  priority 

over  lien  of  head  contrac- 
tor — -  Assignments,  attach- 
ments, etc. 

392.  Kfl'ect  of  collusion   and  fraud 

in  payment  to  principal 
contractor. 

393.  Service    of    notice,    affidavits, 

etc. — How    made. 

394.  Remedy     of     contractors     and 

others  where  owner  sus- 
pends work  without  their 
consent. 

395.  Laborers  shall  have  other  lien 

on  real  property  of  em- 
ployer— Precedence  of  lien 
— When  deemed  waived 
— What  liens  shall  have 
priority. 

396.  To    whom    foregoing    sections 

apply  —  Procedure  inciden- 
tal to  the  action  to  fore- 
close a  lien. 


Sec.  375.     The  origin  and  nature  of  the  lien. 

The  lien  by  which  a  mechanic  or  laborer  can  claim  a  sale 
of  real  estate  for  the  value  of  the  labor  and  material  for  the 

495 


§§376,377  MERW1NE   ON    REAL   ACTIONS.  496 

improvement  thereof,  did  not  exist  at  common  law.  It  is 
purely  a  creature  of  the  statute.*  It  is  founded  in  justice, 
and  arises  from  the  principle  that  the  owner  of  the  real  estate, 
having  secured  the  labor  and  material  improving  his  property, 
should  allow  a  lien  to  attach  thereto  for  the  payment  thereof. 
An  eminent  jurist  of  this  State  once  said  that  its  object  was, 
and  is,  to  obviate  the  injustice  and  wrong  practiced  on  la- 
borers and  material  men  by  contractors,  in  defraudimg  them 
of  their  just  demands  after  they  have  performed  the  labor 
or  furnished  the  material.  It  interferes  with  the  honest  inten- 
tions of  no  man,  and  merely  secures  rights  that  could  have 
been  made  available  by  activity  and  vigilance  in  the  prosecu- 
tion of  remedies  that  existed  before  the  law.1  The  lien,  in 
its  nature,  is  not  obtained  by  legal  proceedings,  but  is  a  lien 
voluntarily  conferred  by  the  owner  when  he  hires  the  mechanic 
or  orders  the  material.2 

Sec.  376.    The  right  to  assert  the  lien  may  be  waived. 

This  right  to  place  a  mechanic's  lien  on  the  real  estate  of 
another  for  labor  and  material  furnished  for  the  improvement 
thereof,  like  any  other  similar  right,  may  be  waived.  It  has 
been  held  that  it  may  be  waived  by  acts  and  agreement,  al- 
though he  has  made  no  express  promise  that  he  will  waive 
the  right ; 3  by  an  agreement,  express  or  implied,  that  the  lien 
will  not  be  asserted;  and  4  by  accepting  a  note  in  payment  of  a 
mechanic's  claim  for  materials  furnished  and  work  done.5 

Sec.  377.  The  lien  allowed  for  labor  and  material  furnished 
for  the  improvement  of  real  estate. 
Every  person  who  does  or  performs  any  work  or  labor  upon 
or  furnishes  machinery,  material  or  fuel  for  constructing, 
altering  or  repairing  a  boat  or  vessel,  or  other  water  craft, 
or  for  erecting,  altering,  repairing  or  removing  a  house,  mill, 
manufactory,  or  any  furnace  or  furnace  material  therein,  or 
other  building,  appurtenance,  fixture,  bridge    or  other  struc- 

*  McCune  v.  Snyder,  S  0.  D.  316.  *  Iron,  etc.,  v.  Murray,  38   0.   S. 

i  Minshall,  J.,  Railway  v.  Cronin,       323. 
1   W.  L.  B.  315.  s  Crooks  v.  Finney,  30   O.  S.   57; 

2  In  re  Beck,  11  0.  F.  D.  449.  but   see    Standard,   etc.,   v.    Sowden, 

s  West  v.  Klotz,  37   0.   S.   420.  55    0.   S.   332;    Bernsdorf   v.   Hard- 

way,  7  C.   C.  378. 


497  REAL   ESTATE   SOLD    BY    MECHANIC'S    LIEN.  §378 

tore,   or   for  digging,   drilling,   boring,   operating    completing 
or  repairing  of  any  gas  well,  oil  well    or  any  other  well,  or 
performs  labor  in  altering,  repairing,  or  constructing  any  oil 
derrick,   oil   tank,   oil   or   gas  pipe  line,   or  furnishes  tile  tor 
the  drainage  of  any  lot  or  land  by  virtue  of  a  contract,  ex- 
pressed or  implied,  with  the  owner,  part  owner    or  lessee    ot 
any   interest   in   real   estate   or  the   authorized   agent   of  the 
owner    part    owner   or   lessee    of  any   interest  in   real   estate, 
shall  have  a  lien  to  secure  payment  of  the  same  upon  such 
boat    v,ssel    or  other  water  craft,  or  upon  such  house,  mill, 
furnace  manufactory,  or  other  building  or  appurtenance    fix- 
ture   bridge    or  other  structure,   or  upon   such    gas   well,   oil 
well    or  any  other  well,  or  upon  such  oil  derrick,  oil  tank, 
oil  or  gas  pipe  line,  and  upon  the  material  or  machinery  so 
furnished,   and  upon  the   interest,  leasehold  or  otherwise,   of 
the   owner,   part  owner,    or  lessee   in   the   lot    or  land   upon 
which   the   same   may  stand,   or  to  which  the   same   may  be 

removed.0  .,.  .        ,        , 

This  lien  does  not  interfere  with  other  liens  already  at- 
tached to  the  land.  The  owner  need  not  be  the  owner  of  the 
fee  and  may  include  a  leasehold  interest.7  The  lien  will  be  al- 
lowed where  material  has  been  furnished  for  a  house,  but  used 
without  the  consent  of  the  person  selling  the  same  for  another 
purpose8  The  lien  can  not  be  asserted  on  the  property  ot 
the  wife  for  material  furnished  to  the  husband  without  her 
consent9      The   lien   is   not    allowed   for    grading    or    sodding 


a  lot.10 

Sec.  378.  The  lien  on  contiguous  lots  or  separate  buildings. 
When  the  improvements  consist  of  two  or  more  buildings 
united  together,  and  situated  on  the  same  lot.  or  contiguous 
lots  or  upon  separate  buildings  on  contiguous  lots,  and  di- 
rected under  one  general  contract,  it  will  not  be  necessary 
to  file  a  separate  lien  upon  each  building  for  the  work  don, 
or  material  furnished  in  the  erection  of  such  improvements. 

e  Gen'l    Code.     §  8308     (P,    S.    §  S    131: :  but  see  GenM  Code,   §  8322 

3184)        See   No.    327    for   form    for  (U.S.  §   3192) 

aio%>-  10  Stitehtenoth    v.    Rife.    6    C.    L. 

hen. 

.Chateau  v.  Thompson    2  0      .  540  g     § 

114:   Dutro  v.  Wilson^  4  0.  S.  101.  ^  ^   Ed  ,4 

s  Beckel  v.  Petticrew.  G  O.  S.  24,.  os.  wi  ;•_ 

9  Spinning    v.    Blackburn,    13    0.  0.    5.    2U^. 


§§379,380  MERW1NE    ON    REAL    ACTIONS.  498 

Sec.  379.     Duty  of  a  contractor  to  defend  any  action  brought 
to  enforce  lien,  when. 

In  all  eases  where  a  lien  has  been  filed  under  the  provision 
of  the  statutes  relating  to  mechanic's  liens,  by  any  person 
other  than  the  contractor,  it  is  made  the  duty  of  the  con- 
tractor to  defend  any  action  brought  thereupon  at  his  own 
expense;  and  during  the  pendency  of  such  action  the  owner 
may  withhold  from  the  contractor  the  amount  of  money  for 
which  such  lien  shall  be  filed,  and  in  case  of  judgment  against 
the  owner  or  his  property,  upon  the  lien,  he  is  entitled  to 
deduct  from  any  amount  due  by  him  to  the  contractor  the 
amount  of  such  judgment  and  costs,  and  if  'he  has  settled 
with  the  contractor  in  full,  he  can  recover  back  from  the  con- 
tractor any  amount  so  paid  by  the  owner  for  which  the  con- 
tractor was  originally  the  party  liable,12  and  every  person, 
including  cestui  qui  trusts,  for  whose  immediate  use,  enjoy- 
ment or  benefit  any  building,  erection  or  improvement  is  made, 
will,  under  the  statute,  be  included  in  the  words  owner  or 
proprietor.13 

Sec.  380.     How  lien  acquired — Notice  to  owner  of  filing  of 
such  mechanic's  lien. 

Such  person,  in  order  to  obtain  such  lien,  is  required  within 
four  months  from  the  time  of  completion  of  such  labor,  or 
furnishing  such  machinery,  material  or  fuel,  to  file  with  the 
recorder  of  the  county  where  the  labor  was  performed,  or 
the  machinery  or  the  material  or  fuel  furnished,  an  affidavit 
containing  an  itemized  statement  of  the  value  and  amount 
of  such  labor,  machinery,  material  or  fuel,  and  a  description 
of  any  promissory  note  or  notes  ^iven  for  such  labor,  ma- 
chinery, material  or  fuel,  or  any  part  thereof,  with  all  credits 
or  offsets  thereon,  a  copy  of  the  contract,  if  it  is  in  writing,  a 
sir. lenient  of  the  amount  and  times  of  payments  to  be  made 
thereunder  and  a  description  of  the  land  on  which  the  gas 
well,  oil  well  or  other  wells  are  situated,  or  the  land  on 
which  the  house,  mill,  furnace  manufactory,  or  other  building 
or  appurtenance,  fixture,  bridge  or  other  structure  may  stand, 
or  to  which  it  may  he  removed,  or  on  which  such  tile  for  drain- 

"(Wl    Code,    §   8312     (R.    S.    §  mQen'1    Ode,    §  8313     (R.    S.    § 

3184c).  3184f). 


499  REAL    ESTATE    SOLD    BY    MECHANIC'S    LIEN.  §381 

age  purposes  may  have  been  used;  and  tin*  same  must  be  re- 
corded in  a  separate  hook  to  be  kept  therefor,  and  will  operate 
as  a  lien  from  the  date  of  the  first  item  of  the  labor  per- 
formed, or  the  machinery,  material  or  fuel  furnished,  upon 
or  toward  the  property  designated  in  Gen'l  Code,  §8308  (R. 
►S.  §3184),  anil  the  interest  of  the  owner  in  the  lot  or  land 
upon  which  the  same  may  stand,  or  to  which  it  may  he  removed, 
for  six  years  from  and  after  the  date  and  of  the  filing  of  such 
attested  statement.  In  any  action  brought  to  enforce  such  lien 
within  that  time,  the  same  shall  continue  in  force  until  the 
final  adjudication  thereof;  and  there  shall  be  no  homestead  or 
other  exemption  against  any  lien  under  the  provisions  of  this 
chapter.  Such  person  filing  the  affidavit  herein  provided,  must 
within  thirty  days  thereafter,  notify  the  owner  of  the  prop- 
erty, his  agent  or  attorney  that  he  claims  such  lien,  and  if  he 
fail  to  do  so,  the  lien  so  secured  shall  be  null  and  void.14 

No  itemized  statement  is  required  when  the  contract  is 
entire  and  one  amount  to  be  paid  for  the  whole.15  Articles 
furnished  continuously  will  furnish  a  lien  from  the  date  of 
each  item  furnished,  and  1,J  the  lien  dates  from  the  first  item 
of  the  account,  and  has  priority  over  liens  subsequent  to 
that  date.17 

Sec.  381.  The  lien  for  work  and  labor  on  roads,  streets,  sewers 
and  ditches — Liens  for  same  work  on  an  improvement 
pro  rata. 

A  person  who  performs  labor  or  furnishes  material  for 
constructing  altering  or  repairing  any  street,  turnpike,  road, 
sidewalk,  way.  drain,  ditch  or  sewer,  by  virtue  of  a  private 
contract  between  him  and  the  owner  of  lands  abutting  thereon 
or  his  authorized  agent  is  entitled  to  have  a  lien  for  the  pay- 
ment of  the  same  against  the  lands  of  such  owner.18 

In  order  to  obtain  such  lien  such  person  must,  within  four 
months  from  the  time  of  performing  the  labor  or  furnishing 
the    material     or    machinery,    file    with    the    recorder    of    the 

14  Gen'l    Code,    §  8314     (R.    S.    §  is  Gen'l    Code.    §8310     (It.    S.    § 

3185).  3186).      Sec   X,,.   :V2S   and   following 

ir' Davis    v.    Hi  ties,    (i    ( ).    S.    47."«:  for   forms    of    procedure   from   filing 

Thomas  v.   Huesman,    Hi  0.   S.    152.  of   petition   for  the  sale  of  the  real 

leHart  v.  Globe,  etc.,  37  0.  S.  7(1.  estate    to    the   delivery    of   the    deed 

17  Woodman    v.   Richardson,    1    (..'.  by  t he  sheriff  to  the  purchaser. 
C.   191. 


§  382  MERWINE   ON    REAL    ACTIONS.  500 

county  where  such  labor  was  performed,  or  material  or  ma- 
chinery furnished,  an  affidavit  containing  an  itemized  state- 
ment of  the  amount  and  value  thereof,  and  a  description  of 
any  promissory  note  or  notes  given  for  the  same,  or  any  part 
thereof,  an  estimate  of  the  amount  chargeable  to  each  front 
foot  along  the  line  of  the  improvement,  and  if  the  contract  is 
made  with  several  of  the  owners,  a  description  of  the  land 
of  each,  with  the  number  of  feet  belonging  to  each  abutting 
on  such  line,  a  copy  of  the  contract,  if  it  is  in  writing,  and  if 
not  in  writing,  a  statement  of  the  amount  and  time  of  pay- 
ments to  be  made  thereunder,  which  must  be  recorded  in  a 
separate  book  to  be  provided  therefor,  and  which  will  operate 
as  a  lien  on  the  interest  of  such  delinquent  in  the  abutting 
land  from  the  day  of  the  first  item  of  labor  done  or  material 
furnished,  for  one  year  from  and  after  the  filing  of  such 
statement,  and  if  an  action  is  brought  to  enforce  the  lien 
within  that  time,  it  shall  continue  in  force  until  finally 
adjudicated.19 

If  liens  be  obtained  by  several  persons,  upon  the  same  job, 
in  the  manner  prescribed  in  the  foregoing  sections  of  the 
statute,  they  will  not  be  entitled  to  any  priority  among  them- 
selves, and  a  lien  of  any  promissory  note  described  in  any 
statement  filed  as  provided  in  said  sections,  will  take  effect 
from  the  date  of  the  first  items  included  in  it ;  all  payment  on 
said  liens  must  be  made  pro  rata.20 

Sec.  382.     Owner  may  require  lienholder  to  commence  suit, 
when. 

The  owner  of  property  upon  which  a  lien  has  been  taken 
to  secure  any  mechanic,  laborer,  or  material  man  may  notify, 
in  writing,  the  owner  of  the  lien,  or  his  agent  or  attorney,  to 
commence  suit  within  sixty  days;  after  receiving  such  written 
notice  the  lien  shall  be  null  and  void,  but  nothing  herein 
contained  shall  prevent  the  claim  from  being  collected  as 
other  claims  are  collected  by  law.21 


i»Gen'l    Code.    §   8317     ( R.    S.    §       3188);    Devine   v.  Taylor,   12   C.   C. 
3187).  723. 

aoGen'l    Code,    §8318     ( R.    S.    §  21  Gen'l    Code,    §  8321     (R.    S.    § 

3191). 


501  REAL   ESTATE    SOLD    BY    MECHANIC'S    LIEN.      §§383,384 

Sec.  383.     Rights  and  liabilities  of  executors,  administrators 
and  married  women  as  to  mechanic's  liens. 

Executors  and  administrators  of  deceased  persons  have  the 
same  rights  and  are  subject  to  the  same  liabilities  under  this 
chapter  as  such  owners  would  enjoy,  and  be  subject  to,  if 
alive ;  and  when  a  married  woman  is  the  owner  of  the  land 
as  is  mentioned  in  Gen 'I  Code,  §  8308  (R.  S.  §  3184),  or  is  the 
owner  of  lands  abutting  on  a  street,  etc.,  as  is  mentioned  in  Gen '1 
Code,  §8316  (B.  S.  §3186),  and  has  knowledge  of  any  such 
structure  as  is  mentioned  in  R.  S.  §§  3184  and  3186.  the  same 
being  done  under  a  contract  with  the  husband  of  such  married 
woman,  and  without  her  express  objection,  such  husband  will 
be  deemed  and  held  to  be  the  duly  and  legally  authorized  agent 
of  said  married  woman  therein.22 

Sec  384.     Subcontractors'  lien— How  acquired. 

Any  subcontractor,  material  man,  laborer,  or  mechanic,  who 
has  performed  labor  or  furnished  material,  fuel  or  machinery, 
who  is  performing  labor,  or  furnishing  material,  fuel  or  ma- 
chinery, or  who  is  about  to  perform  labor,  or  furnish  material, 
fuel  or  machinery  for  the  construction,  alteration,  removal  or 
repair    of    any    property,    appurtenance    or    structure,    as    de- 
scribed in  Gen'l  Code,  §8308  (R.  S.  §3184),  and  Gen'l  Code, 
§8316    (R.    S.    §3186),   or  for   the   construction,    improvement 
or    repair    of    any   turnpike,    road   improvement,    sewer,    street 
or    other    public    improvement,    or    public    building    provide  1 
for  in  a  contract  between  the  owner,  or  any  board,  officer  or 
public  authority  and  a  principal  contractor,  and  under  a  con- 
tract  between   such   subcontractor,    material   man.    laborer   or 
mechanic    and    a   principal   contractor   or   subcontractor,    may 
at   the   time   of   beginning   to    perform   such   labor   or   furnish 
such   material,   fuel   or  machinery,  or   at   any   time   thereafter 
not  to  exceed  four  months  from  the  performance  of  such  labor 
or  the  delivery  of  such  machinery,  fuel  or  material,  file  with 
the  owner,  board  or  officer,  or  the  authorized  clerk  or  agent 
thereof,   a  sworn  and  itemized  statement   of  the   amount   and 
value  of  such  labor  performed    and  to  be  performed,  material, 
fuel  or  machinery  furnished,  containing  a  description  of  any 

22Gen'l    Code,    §  S322     (R.    S.    §  3192),  Hiller  v.  Hohman,  12  C.  C.  216. 


§§385-387  MERWINExON    REAL    ACTIONS.  502 

promissory  uote  or  notes  that  may  have  been  given  by  the 
principal  contractor  or  subcontractor  on  account  of  said  labor, 
machinery  or  material  or  any  part  thereof,  with  all  credits  and 
set-offs  thereon.23 

Sec.  385.  Owner  to  retain  subsequent  payments  on  notice. 
Upon  receiving  the  notice  required  by  the  preceding  sec- 
tion, such  owner,  board  or  office  or  public  authority  or  author- 
ized clerk,  agent  or  attorney  thereof  is  required  to  retain 
in  his  hands  all  subsequent  payments  from  the  principal  or 
subcontractor  to»secure  such  claims  and  the  claims  and  esti- 
mates of  other  subcontractors,  material  men,  laborers,  me- 
chanics, or  persons  furnishing  materials  to  or  performing 
labor  for  any  contractor  or  subcontractor  who  may  intervene 
before  the  next  subsequent  payment  under  the  contract,  or 
within  the  ten  days  thereafter.24 

Sec.  386     The  statement  to  be  filed  with  recorder  to  notify 
fellow-laborers. 

Such  subcontractor,  material  man,  mechanic,  laborer  or 
person  so  filing  his  statement  with  the  owner,  board,  officer, 
or  authorized  clerk  or  agent  or  attorney  thereof,  must,  in 
order  to  notify  his  fellow  subcontractors,  material  men,  me- 
chanics and  laborers  at  the  same  time  file  a  copy  thereof  with  the 
recorder  of  the  county  where  such  property  is  situate,  which, 
if  he  fail  to  do,  the  filing  of  the  notice  with  the  owner,  board, 
officer  or  authorized  clerk,  agent  or  attorney  thereof  will 
give  him  no  preference  over  other  claimants;  and  for  filing 
or  making  any  copy  of  such  statement  or  certificate  of  the 
date  of  such  filing  the  recorder  will  be  entitled  to  the  same 
fees  as  are  provided  by  law  for  similar  services  in  regard  to 
chattel  mortga ges.25 

Sec.  387.     Pro  rata  payment  of  subcontractors  out  of  subse- 
quent payments  due  head  contractor . 

All  other  subcontractors,  material  men,  laborers,  mechanics 
or  persons   furnishing  material,  fuel  or  machinery,  who,  before 

23Gen1    Code,    §8324     (R.    S.    §  ^  Gen'l    Code,    §8325    (R.    S.    § 

3193).      Aa    to    the    notice    to    be       3194).    Tolheiss    v.    James,    25    VV. 
served   on  a   corporation,  see  Dunn       L.    I!.   '277. 

v.     Rankin,    27    O.     S.     132,  25  Geri']    Code,    §   8326     (R.    S.    § 

3195). 


503  rem,  estate  soi.o  by   mechanic's  lien.  §388 

the  first  subsequent  paymen  s  Call  due  after  the  deposit  of  a 
copy  of  such  statement  with  the  county  recorder  by  any  sub- 
contractor, material  or  machinery  mlan,  laborer,  or  person 
Furnishing  material,  or  within  ten  days  thereafter,  iile  with 
such  owner,  board,  officer  or  authorized  clerk,  agent  or  at- 
torney thereof,  a  sworn  and  itemized  statement  or  estimate 
of  the  labor,  machinery,  fuel  or  material  furnished  or  to  be 
furnished  by  them  under  a  contract  with  a  principal  or  .sub- 
contractor, containing  a  description  of  any  promissory  note 
or  notes  given  for  the  same  or  any  part  thereof,  will  be 
paid  pro  rata  with  the  person  first  so  filing  such  statement 
and  with  each  other,  out  of  said  first  and  other  subsequent 
payments  so  falling  due;  but  upon  failure  so  to  do.  they 
can  have  no  recourse  against  the  owner,  board,  officer,  or  the 
clerk  or  agent  thereof  for  any  prior  payments  made  under 
his  contract  with  his  head  contractor  or  subcontractor.20 

Sec.  388.  Copy  of  statement  to  be  furnished  to  head  con- 
tractor—His duty— Priority  of  liens. 
The  owner,  board,  officer  or  clerk,  agent  or  attorney  thereof, 
upon  the  receipt  of  such  statement  must,  or  the  lien  claimant, 
his  agent  or  attorney,  in  the  name  of  such  owner,  board  or 
officer,  may  furnish  the  principal  contractor  or  subcontractor 
with  a  copy  thereof  within  five  days  after  receiving  the  same, 
and  if  such  principal  or  subcontractor  fail,  within  five  days 
after  such  receipt  by  him,  to  notify  in  writing  such  owner, 
board,  officer  or  clerk,  a"-ent  or  attorney  thereof  of  his  inten- 
tion to  dispute  such  claim,  he  will  be  considered  as  assenting 
to  the  correctness  thereof,  and  thereupon  such  subsequent  pay- 
ment will  be  applied  by  such  owner,  his  ageut  or  attorney, 
pro  rata,  upon  such  claim,  and  the  amounts,  when  due,  of 
such  claim  or  estimates  as  have  been  meanwhile  filed  by  other 
subcontractors,  material  men,  laborers,  mechanics  or  persons 
furnishing  materials,  and  assented  to  or  adjusted  as  provided 
for  in  this  chapter,  before  the  first  of  such  subsequent  payments 
falls  due,  or  within  ten  days  thereafter;  but  claims  in  favor 
of  laborers,  mechanics,  and  persons  furnishing  material  to  a 
contractor,  must  be  paid  before  the  claims  of  subcontractors, 
and  those  of  subcontractors  before  the  principal  contractor.27 

26Gen'l    Code,    §  8328     (R.    S.    §  ™  Cen'l    Code,    §83.29     (R.    S.     § 

3197).  3198). 


§§389,390  MEKWINE    ON    REAL   ACTIONS.  504 

Sec.  389.     Remedy  of  subcontractor  when  his  contractor  or 
the  owner  refuses  to  pay. 

If  a  head  contractor  or  subcontractor  neglect  or  refuse 
to  pay,  within  five  days  after  his  assent  to  or  adjustment 
of  any  claim,  the  amount  thereof,  and  costs  incurred,  to  the 
subcontractor  or  material  man,  laborer  or  mechanic,  the 
owner,  board,  officer  or  clerk  or  agent  thereof,  shall  pay,  when 
due,  the  whole  or  a  pro  rata  amount  thereof  as  the  case  may 
be,  as  above  provided  out  of  payments  subsequently  falling 
due,  and  on  his  failure  so  to  do,  within  ten  days  thereafter, 
the  subcontractor  or  material  man,  laborer,  mechanic  or  per- 
son furnishing  material  may  recover  against  the  owner,  in 
an  action  for  money  had  or  received,  when  due,  the  whole 
or  a  pro  rata  amount,  as  the  case  may  be,  of  his  claim  or 
estimate,  not  exceeding  in  any  case  the  balance  due  to  the 
principal  contractor.28 

Sec.  390.     When    and    how    subcontractor    may    obtain    lien 
on  the  property  of  the  owner. 

If  out  of  the  subsequent  payments,  as  they  severally  fall 
due  under  the  contract,  and  for  ten  days  thereafter,  the  owner 
or  his  authorized  agent  neglect  or  refuse  to  pay,  when  due, 
the   whole    or   a   pro    rata   amount,    as   the    case   may   be,    of 
the   sworn  statement  or  estimate   of  any   subcontractor,   ma- 
terial man,  laborer    or  mechanic,  such  subcontractor,  material 
man,  laborer  or  mechanic  must  file,  within  four  months  there- 
after, with  the  recorder  of  the  county  wherein  the  property 
is  situate,  an  affidavit  containing  an  itemized  statement  and 
description  of  any  note,  with  the  amount  and  value  of  such 
labor,  machinery  or  material,  with  all  credits  and  set-offs  there- 
on, together  with  the  statements  required  by  Gen'l  Code,  §§  8314, 
8317    (R.   S.   §§3185,  3187),  as  the  case  may  be,   from   prin- 
cipal contractors,  and  shall  thereby  have  a  lien  to  secure  the 
payment  of  such  claim  upon  the  boat,  vessel    or  other  water 
craft,  or  upon  the  house,  mill,  manufactory,  building  appurte- 
nance, fixture,  bridge  or  other  structure  or  gas  well,  oil  well  or 
other  well  upon  which  the  labor  was  done,  or  machinery  or 
material  were  furnished,  and  upon  the  interest  of  the  owner  in 
the  lot  of  land  on  which  the  same  stands,  or  to  which  it  may  be 

28  Gen'l    Code,    §  8331     (R.    S.    §    3200). 


505  REAL   ESTATE   SOLD   BY    MECHANIC'S    LIEN.     §§^!»l,o(J2 

removed,  which  lien  shall  date  back  to  the  date  of  the  furnish- 
ing of  the  first  item  of  such  labor,  machinery  or  material  and 
have  the  same  operation,  effect  and  duration  and  be  subject  to 
the  same  obligation  with  respect  to  the  owner,  as  the  lien  of  a 
head   contractor  in  similar  cases.-9 


Sec.  391.     Such  lien  entitled  to  priority  over  lien   of  head 
contractor — Assignments — Attachments. 

Such  lien  will  be  superior  to  any  already  taken  or  to  be 
taken  by  the  head  contractor  in  respect  of  the  same  labor, 
machinery,  fuel  or  material ;  and  the  liens  of  laborers,  me- 
chanics, or  persons  furnishing  machinery,  fuel  or  material  to 
a  contractor  or  subcontractor,  will  be  superior  to  any  lien 
taken  or  to  be  taken  by  such  contractor  or  subcontractor  in- 
debted to  them  in  respect  of  such  labor,  machinery  or  material. 
The  lien  of  a  promissory  note  described  in  any  such  state- 
ment will  take  effect  from  the  date  of  the  first  item  included 
in  such  notes,  and  an  assignment  or  transfer  by  such  head 
contractor,  or  subcontractor,  of  his  contract  with  the  owner 
or  head  contractor,  as  well  as  all  proceedings  in  attachment 
or  otherwise,  against  such  head  contractor  or  subcontractor, 
to  subject  or  encumber  his  interest  in  such  contract,  shall 
save  and  be  subject  to  the  claims  of  every  laborer,  mechanic, 
subcontractor  or  material  man  who  has  furnished  any  labor, 
machinery,  fuel  or  material  towards  the  construction,  altera- 
tion, removal  or  repair  of  any  building  or  other  property 
designated  in  this  chapter.30 

Sec.  392.     Effect  of  collusion  or  fraud  in  payment  to  princi- 
pal contractor. 

If  by  collusion  or  fraud,  the  owner,  board,  officer,  or  the 
authorized  clerk  or  agent  thereof,  pay  in  advance  of  the  pay- 
ments due  under  the  contract,  and  thereby  diminish  the 
amount  of  funds  for  such  laborer,  mechanic,  subcontractor 
or  material  man,  he  will  be  liable  to  such  laborer,  mechanic, 
subcontractor  or  material  man  to  the  amount  that  would 
have  been  due  on  such  contract  at  the  date  of  filing  of  an 

29Gen'l    Code,    §  8332     (R.    S.    §  so  On'l    Code,    §§8333    and    8334 

3201).  (E.  S.   §3203). 


§§393-395  MERWINE   ON   REAL   ACTIONS.  50G 

account  and  affidavit   in  such  manner  as  if  no  payment  had 
been  made.31 

Sec.  393.     Service  of  notice — Affidavits,  etc. — How  made. 

Any  notice,  affidavit  or  copy  required  to  be  served  under 
the  provisions  of  this  chapter  may  also  be  served  by  the 
sheriff  of  the  county  within  which  the  person,  board  or  officer 
sought  to  be  served  as  resident,  in  manner  and  form,  and 
for  which  he  will  be  entitled  to  the  same  fees  as  provided  by 
law  for  service  of  summons  in  a  civil  action  for  money  only, 
and  if  the  owner  of  property  sought  to  be  subjected  to  a  lien 
resides  without  the  State,  or  is  beyond  the  reach  of  process, 
notice  may  be  given  by  publication  as  in  civil  actions.32 

Sec.  394.  The  remedy  of  contractors  and  others  when  owner 
suspends  work  without  their  consent. 
If  the  progress  or  completion  of  the  work  on  any  property 
designated  in  this  chapter  be  suspended  by  the  default  or 
decease  of  its  owner,  without  consent  of  such  head  or  sub- 
contractor, or  material  man,  he  or  they,  or  any  of  them,  may 
proceed  with  the  work,  in  accordance,  however,  with  the  terms 
of  the  original  plan  or  contract,  and  on  completion  thereof, 
have  either  or  all  the  remedies  provided  by  this  chapter.33 

Sec.  395.     Laborers  shall  have  other  lien  upon  real  properly 
of  employer — Precedence  of  lien — When  deemed  waived 
— What  liens  shall  have  priority. 
Laborers  and  employes  of  any  persons,   association   of  per- 
sons or  corporation,  whether  such  employment  be  at   agricul- 
ture, mining,  manufacture  or  other  manual  labor,  shall  have 
a   lien   upon    the    real    property    of   their   employers    for    their 
wages,  which  is  hereby  declared  to  be  superior  to  the  follow- 
ing   liens    taken    or   attaching    during    the    existence    of    such 
unpaid  labor  claims,  to-wit:  liens  of  attachment,  liens  of  mort- 
gage    given    or   taken    at    a   time   of   actual   insolvency    of   the 
debtor,   or   with   a   view   of  preferring  creditors   or  to   secure 
a   pre-existing  debt,  and  superior  to  all  claims  for  homestead 

::i  r:,.n-l    Code     5  8335     (11.    S.    §  saGen'l    Code,    §  983?     (It.    S.    § 

320:1!.  3205). 

32 1  ;,.„■]    Code,    §8336     (R    S.    § 

.'520  I 


507  REAL    ESTATE    SOLD    BY    MECHANIC'S    LIEN.  §396 

or  other  exemptions,  except  under  Gen'l  Code,  §11725   (R.  S. 
§  54:50)  ;   and   in   all    cases    where   property   of  an    employer  is 
placed  in  the  hands  of  an  assignee,  receiver  or  trustee,  claims 
due  for  labor  performed  within  the  period  of  three  months  prior 
to  the  time  such  assignee,  receiver  or  trustee  is  appointed,  shall 
be  first    paid  out  of  the  trust   fund,  in   preference  to  all  other 
claims  against  such  employer,  except  claims  for  taxes  and  the 
costs  of  administering  the  trust.    The  lien  herein  provided  shall 
be  deemed  to  be  waived  by  the  laborer  or  employe,  as  to  any 
portion    of    such    labor,    unless    within    thirty    days   from    the 
expiration    of    three    months    from    the    performance    of    such 
portion    he   shall   file   with. the   recorder  of  the   county   where 
the   labor   was   performed,    an    itemized   statement    verified   by 
affidavit,  of  the  amount,  kind  and  value  of  the  labor  performed 
within  said  period,  with  all  credits  and  offsets,  and  the  amount 
then    due    him    therefor,    which    verified    statement,    when    so 
tiled,  shall  be  recorded  in  a  book  kept   for  the   purpose,  and 
shall    become   and   operate    as   a  lien   upon   the   real   property 
of    the    employer    without    any    specific    description    thereof, 
for  the  period  of  one  year  from  and  after  the  filing  thereof, 
and   if  an   action   is   brought  to   enforce   the   lien   within   that 
time,  it  shall  continue  in  force  until  finally  adjudicated;  and 
the  proceedings  to  enforce  such  lien  shall  be  the  same  as  in 
other   cases   of  lien,   against   the   owner   of  the   property   and 
all  other  persons  interested ;  provided,  that  if  several  persons 
have    or    obtain    liens    under   the    provisions    of    this    section, 
against   the   property   of  the   same   employer,   they   shall   have 
no  priority  among  themselves,  but   all  shall  be  paid  pro  rata, 
nor  shall  they  have  priority  over  those  obtaining  liens  under 
Gen'l  Code,  §§  8:508,  8314,  8315,  8316,  8317  (R.  S.  §§  3184,  3185, 
3186,  3187),  but  the  persons  obtaining  liens  under  said  R.   S. 
§§3184,  3185,  3186  and  3187  shall  have  priority  as  provided 
therein.'4 

Sec.  386.     To  whom  foregoing  section  applies. 

The  provisions  of  the  foregoing  section  shall  apply  to  and 
include  any  laborer  who  indirectly  performs  labor  for  a  gen- 
eral employer,  or  the  results  of  whose  labor  are  immediately 
enjoyed   by    a    general   employer,   whenever   such   general   em- 

s*  Gen'l    Code,    §  833!)     (11.    S.    §    3206a). 


§  396  MERWINE   ON    REAL   ACTIONS.  508 

ployer  assumes  payment  of  such  laborer's  wages  by  passing 
a  credit  therefor  upon  his  books  of  accounts  or  otherwise, 
and  whenever  the  provisions  of  this  section  apply,  all  pro- 
ceedings hereunder  shall  be  the  same  as  provided  in  the  pre- 
ceding section.  But  nothing  in  the  foregoing  section  shall 
be  so  construed  as  to  affect  or  impair  any  valid  and  subsisting 
lien  existing  at  the  time  of  the  passage  of  this  act.3"' 

In  concluding  this  chapter,  it  is  to  be  observed  that  the 
procedure  in  foreclosing  a  mechanic's  lien  is  much  the  same 
as  is  observed  in  foreclosing  a  mortgage,  and  reference  is 
had  to  the  first  chapter  of  this  book  as  to  venue,  service  of 
summons,  defense  of  infants  and  insane  persons,  service  by 
publication  upon  non-resident  defendants,  and  upon  unknown 
heirs.  The  procedure  is  there  set  forth  and  need  not  be  here 
repeated. 

ssGen'l    Code,    §  8342     (K.    S.    §    3206b). 


FORMS. 


PROCEDURE  IN  SALE  OF  REAL  ESTATE  TO  SATISFY  A 

MECHANIC'S  LIEN. 

FORMS. 

327.     The   mechanic's  lien. 

No.  327.     The  mechanic's  lien. 

,  Ohio,  — ,  19 . 

H.  L.  R.  to  E.  L.,  dr. 

To  work   and  labor  performed  for   the   erection  of  a   frame   house 

on  lot  No.  ,  in  Addition,  ,  Ohio,  as  per  contract 

price,    under    oral    contract    entered    into    on    or    about    the    

day  of  ,  19 ,  $ • 


Credit  by  cash  payment  on  the 

day    of    ,    19 

Balance    due     


State  of  Ohio,  County,  ss.: 

E.  L.,  being  first  duly  sworn,  says  that  the  above  is  a  true  and 
correct  itemized  statement  of  the  amount  and  value  of  the  labor  per- 
formed by  him  for  the  said  H.  L.  R.  in  said  county,  between  the 

day    of    ,    19 ,    and    the    day    of    ,    19 , 

under  and  by   virtue   of  a   contract,   not   in   writing,   entered   into   be- 
tween  the   said    H.   L.   R.    and   the   said    E.   L.,    said   work  and    labor 

to  be  performed  in  the  erection  of  a  certain dwelling  noire, 

the  substance  of  which  contract  is  as   follows.      (Here  set  forth  the 
substance  of  the   contract.) 

The  value  of  said  labor  is  as  stated  in  said  itemized  statement 
above  and   the  same   is   just  and   reasonable.      Said   labor  was  begun 

on   the day    of   ,    19 . 

No  promissory  notes  have  been  given  for  said  indebtedness,  and 
there  are  no  credits  upon,  nor  offsets  against  the  same,  except  as 
indicated    on    said    above    statement.      And    there    remains    due    and 

unpaid  to  the   said  E.   L.   the  sum   of   $ ,   with   interest   thereon 

from  the day  of ,  19 ,  at per  cent,  per  annum. 

At    the    time    said    contract    was    entered    into    and    the    time    said 
labor    -vas    performed,    the    said    H.    L.    R.    was    the    owner    of    said 
building    and  the  lot  of  land  upon  which  the  same  is  located,  which 
lot  of  land  is  described  as  follows:      (Here  describe  it). 
500 


MERWINE    ON    REAL   ACTIONS. 


510 


This  affiant   claims  a   lien   on   said   real  estate   to  secure   the   pay- 
ment  of   said    indebtedness  J&    L. 

Sworn   to  before  me  and  subscribed  by  E.  L.   in  my   presence  on 

this  day  of  ,   19 . 


Notary'  Public, 


County,  Ohio. 


PROCEDURE  IN  SALE  OF  REAL  ESTATE  TO  SATISFY 
A  MECHANIC'S  LIEN,  WHERE  PERSONAL  JUDG- 
MENT IS  ASKED  AND  CAUSE  TRIED  BY 
A  COURT  AND  JURY. 


FORMS 

328. 

325). 
330. 

331. 


The  petition  for  foreclosure 
of    a    mechanic's    lien. 

The    precipe    for    summons. 

The  summons  and  its  return 
of    service    by    the    sheriff. 

An  answer  and  cross-petition 
in  the  action. 

332.  Reply   to   answer   and   answer 

to  cross-petition. 

333.  The  verdict   of   the   jury. 

334.  Motion    to    set    aside   the   ver- 

dict  and    for   a    new    trial. 

335.  Order     of     court     overruling 

motion  for  new  trial, 
judgment  on  the,  verdict 
and  decree  ordering  sale 
of  real  estate. 

336.  The  order  of  sale  directed  by 

the   clerk  to   the   sheriff. 


FORMS 

337 


338. 
339. 


340. 


341. 


342. 


343. 


Sheriff's       procedure       under 

said  order  of  sale  and  oath 

of  appraisers. 
Appraiser's  report. 
Proof   of   publication    of  legal 

notice      of      sale     of      ieal 

estate. 
Legal    notice    of   sale    of    real 

estate. 
Sheriff's    return    of    his    pro- 
ceedings   under    the    order 

of    sale. 
Decree     and     order     of    court 

confirming     sale,     ordering 

deed        and 

fund. 
Sheriff's  deed. 


distributing 


No.  328.     Petition  for  personal  judgment  and  foreclosure  of 
mechanic's  lien. 


E.  L.. 


Court  of  Common  Pleas, 
Plaintiff, 


vs. 


County,  Ohio. 


No. 


H.   L.  R..  A.  E.   D.  and 
The  O.  B.  &  L.  Co., 
Defendants. 


Petition. 


I.     First  cause  of  action. 

On   or   about    the   —   day  of 


19- 


plaintiff  en- 


tered into   a  contract,  not  in  writing,   with   the   defendant,   H.  L.  R., 


511  FORMS. 

whereby   plaintiff  agreed    to   do   all   the   carpenter   work   necessary    in 

the    erection    of    a    certain    room    dwelling    house    on 

lot   No.  of  Addition   in   the  City    of  ,   

County,   Ohio,   said   carpenter   work   to   be   completed  on   the  


day  of  ,   19' ,  and   in  consideration  whereof  said   H.  L.  R. 

on  her  part  agreed  to  pay  plaintiff  for  said  carpenter  work  the  sum 
of  $ ,   payments   to  be  made  as-   said   work   progressed. 

In  pursuance  of  said  contract  plaintiff  fully  performed  the  same 
and  fully  performed  all  conditions  on  his  part  to  be  performed  by 
said  day   of  ,   19 . 

The    defendant,    H.    L.    R.,    has    paid    to    plaintiff   on    said    contract 

price  the  sum  of  $ ,  leaving  a  balance  of  $ ,  which  plaintiff 

claims    with    interest    thereon    from    the day    of    — , 

19 ,    at    six    per   cent,    per   annum,    and    which    balance    defendant, 

H.  L.  R.,  has  neglected   and  refused  to  pay. 

2.     Second   cause  of  action. 

On  or  about  the day  of ,  19 ,  plaintiff  entered 

into  a  contract,  not  in  writing,  with  the  defendant,  H.  L.  R.,  being 
the  same  contract  mentioned  in  the  first  cause  of  action  herein, 
whereby    plaintiff   agreed   to   do   all    the   carpenter   work    necessary    in 

the  erection  of  a  certain  room  dwelling  house  on  lot 

No.  in   Addition   to   said   city,   said   carpenter   work   to 

be  completed  on  the  day  of  ,  19 ,  and  in  con- 
sideration  whereof   the   said   H.   L.   R.,   upon   her   part  agreed   to   pay 

plaintiff    for   said   carpenter   work   the    sum    of    $ ,    payments    to 

be  made  as  said   work   progressed. 

In  pursuance  of  said  contract  plaintiff  fully  performed  the  same 
and  fully  performed  all  the  conditions  on  his  part  to  be  performed 
by    said clay   of  ,    19 . 

The  defendant,  H.  L.  R.,  has  paid  to  plaintiff  on  said  contract  the 

sum  of  $ ,  leaving  the  balance  of  $ ,  which  plaintiff  claims 

with  legal  interest  thereon  from  the day  of  ,  1" , 

with  per  cent,  interest  per  annum,  and  which  balance  defendant, 

H.  L.  R.,  has  neglected  and  refused  to  pay. 

At  the  time  plaintiff  performed  such  labor,  defendant,  H.  L.  R., 
was  the  owner  in  fee  simple  of  said  lot  on  which  said  building  was 
erected,  more  specifically  described  as  follows,  to-wit:  (Here  insert 
description   of   real   estate). 

On  the  day  of  ,  19 ,  at  o'clock,  m., 

and  within  four  months  from  the  time  said  labor  was  performed, 
the  plaintiff  duly  filed  with  the  recorder  of  said  county  for  record 
an  affidavit  containing  an  itemized  statement  of  the  amount  and  van1 
of  said  labor,  with  all  credits  and  off  sets  thereon,  together  wlt'i 
a  statement  of  the  amount  and  times  of  payments  to  be  made  there- 
for, and  a  description  of  the  real  estate  on  which  said  building  stand,, 
which  said  affidavit  was  recorded  in  Record  of  Mechanic's  Lirn.  vol. 

.  nsgp  — — .  of  the  records  of  County,  Ohio,  and   p'aint'ff 

within  thirty  days  after  the  filing  of  said  affidavit,  notified  defendant 
H.  L.  R.,  that  he  claimed  such  lien,  whereby  his  claim   became,  and 


MERWINE    ON    REAL    ACTIONS.  512 


is  a  valid   lien   on   said   building   and   lot  of   land   from    the  

(jay   0f   f   19 ;    when   said   labor   was    commenced,    for   the 

full   value  of  said  balance. 

The  defendants,  A.  E.  B.  and  The  O.  B.  &  L.  Co.,  each  claim 
to  have  some  interest  in  said  property  as  lienholders  or  other- 
wise, and  the  same  are  adverse  and  inferior  to  plaintiff's  claim  and 
lien,  and  plaintiff  asks  that  they  may  be  required  to  set  up  their 
claims  in  this  action  or  be  forever  barred   from  asserting  the  same. 

Plaintiff    therefore    prays    judgment    against   the    defendant,    H.    L. 

R.,  in  the  sum  of  $ ,  with  interest  on  said  sum  from  the  

day  of  ,  19 ;   that  said  claim  set  out  in  the  second  cause 

of  action  may  be  decreed  to  be  a  lien  on  the  premises  herein  de- 
scribed; that  said  premises  may  be  sold,  and  the  proceeds  arising 
therefrom  applied  to  the  payment  of  said  claim,  interest  and  costs, 
and  whatever  other  liens  there  may  be  thereon,  in  the  order  of 
their  priority,  and  such  other  and  further  relief  as  equity  and  the 
nature  of  the  case  may   require.  , 


Attorneys  for  Plaintiff. 


(This  petition  should  be  verified.) 


No.  329.     The  precipe  for  summons. 

To  the  Clerk  of  the  Common  Pleas  Court,  — County,  Ohio: 

Issue  summons  to  the  sheriff  of  County,  Ohio,  returnable 

according  to  law.     Indorse   "An  action  for   judgment  under   contract, 

amount  claimed  $ ,  with  interest  on  said  sum  from  the  

day  of  ,  at  per  cent,  per  annum,  also  for  the  foreclosure 

of  a  mechanic's  lien  and  equitable  relief." 


Attorneys  for  Plaintiff. 


No.  330.     The  summons. 

State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of County,  Greeting.- 

You  are  commanded  to  notify  H.  L.  R.,  A.  E.  D.  and  the  0.  B. 
&  L.  Co.  that  they  have  been  sued  by  E.  L.  in  the  Court  of  Common 

Pleas   of  County,  Ohio,  and  that  unless  they  answer  by  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and  ,  the  petition  of  said  plaintiff  against  them,   filed 

in  the  clerk's  office  of  said  county,  such  petition  will  be  taken  as  trua 
and  judgment  rendered  accordingly. 

You  will  make   the   return   of  this  summons   on   the  diy 

of  ,  in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Witness    my    hand    and    seal    of   said    court    this    day    of 

,   19 .  . 


Clerk   of  the   Court   of   Common  Picas, 
County,   Ohio. 


513  FORMS. 

The  Sheriff's  Return  of  Service  of  Said  Writ. 

State  of  Ohio,  County,  ss.: 

Received  this  writ  ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and  ,  at  o'clock  m.,  and  pursuant  to 

its  command,  on  the  day  of  ,  19 ,   I   served  the 

same  by  personally  handing  a  true  and  duly  certified  copy  of  this 
writ,  with  all  the  indorsements  thereon,  to  the  within  named  defend- 
ant, H.  L.  R.  I  also,  on  the  same  day,  left  a  true  and  duly  certified 
copy  of  this  writ,  with  all  the  indorsements  thereon,  at  the  usual 
place  of  residence  of  the  within  named  defendant,  A.  E.  D.  Also, 
on  the  same  day,  I  served  the  within  named  defendant,  The  O.  B. 
&  L.  Co.,  by  personally  handing  a  true  and  duly  certified  copy  of  this 

writ,  with  all  the  indorsements  thereon,  to  ,  secretary  of  said 

The  O.  B.  &  L.  Co.,  the  President,  Vice-President  or  other  chief  officer 
of  the  said  The  O.  B.  &  L.  Co.,  not  found  within  my  bailiwick. 


Sheriff  of  County,  Ohio. 

No.  331.    Answer  and  cross-petition  of  H.  L.  R. 

Court  of  Common  Pleas,  County,  Ohio. 

(Same  caption  as   in   the  petition.) 
1.     First  Defense: 

Now  comes  the  defendant,  H.  L.  R.,  and  for  her  answer  and 
cross-petition  herein,  and  by  way  of  counter-claim  to  said  first  and 
second    causes    of    actions    mentioned    in    the    petition,    says    that    she 

admits  and   avers   as   follows:      That   on  or   about   the  day 

of  ,  19 ,  she  entered  into  a  contract,  not  in  writing,  with 

the  plaintiff,  whereby  it  was  agreed  that  she  should  purchase  and 
have   delivered   upon  the  ground   all   lumber   and  material    necessary 

for  the  construction  and  erection  of  a  certain  room 

dwelling  house  on  the  real  estate  mentioned  in  the  petition;  that  the 
plaintiff  should  prepare  and  make  out  bills  showing  the  character 
and  amount  of  lumber  necessary  for  the  construction  of  said  house, 
and  should  receive,  check  up  invoices  of  and  have  charge  of  all 
lumber  so  delivered  upon  said  premises  for  this  defendant,  and  should 
do  all  the  carpenter  work  necessary  in  the  erection  and  construction 

of    said    building,    and    complete   the    same    on    the    day    of 

,  19 ;    that  in  consideration  thereof  this  defendant  agreed 

to   pay   plaintiff    for    said   services    the   sum    of   $ ,    payments    to 

be  paid  as  said  work  progressed;  that  this  defendant  has  paid  plaintiff 

the  sum   of  $ ;    that  plaintiff  worked  upon    said   building;    that 

this  defendant  was  the  owner  in  fee  simple  of  said  real  estate;    that 

on   or  about    the  day   of  ,   19 ,   and    within    four 

months    from    the   time    said   labor  was    performed,   the   plaintiff   filed 

with  the  recorder  of  County,  Ohio,  for  record,  an   itemized 

statement  of  his  claim  as  to  the  amount  and  value  of  said  labor  with 
a  statement  of  the  amount  and  times  of  payment  to  be  made  therefor, 
and  a  description  of  said  real  estate;   that  said  affidavit  was  recorded 


MERWINE    ON    REAL    ACTIONS.  514 

in   Mechanic's    Lien    Record,   Vol.   ,    page  ,    of    the    records   of 

said  county,  and  that  plaintiff  notified  this  defendant  that  he  claimed 
such  lien. 

This  defendant  denies  each  and  every  allegation  in  said  first 
and  second  causes  of  action  not  hereinabove  expressly  admitted  or 
averred  to  be  true. 

This  defendant  avers  that  she  purchased  and  had  delivered  upon 
said  premises,  not  only  all  lumber  and  material  necessary  for  said 
work,  but  also  a  large  amount  of  lumber  and  material  which  said 
plaintiff  claimed  was  necessary  for  the  construction  of  said  building, 
but  which  was,  in  fact,  not  necessary  for  that  purpose;  that  of  the 
lumber  so  purchased  and  delivered  to  this  defendant  upon  said  prem- 
ises, and  in  the  care  and  charge  of  said  plaintiff  as  aforesaid,  said 
plaintiff  took  and  carried  away  and  unlawfully  converted  and  dis- 
posed of  the  same  to  his  own  use,  the  following  lumber  and  material, 
to-wit: of   the   value   of   $ . 

Whereby    this    defendant    was    damaged    in    the    sum    of    $ , 

which  she  prays  may  be  allowed  and  adjudged  to  her  as  a  counter- 
claim  against   the   said  claim   of   plaintiff. 

Wherefore,    this    answering    defendant    says    she    is    damaged    in 

the   sum    of    $ ,    which    sum    she    prays    may    be    allowed    and 

adjudged  due  her  as  a  counter-claim  against  the  claim  of  said  plaintiff. 


Attorneys    for    Defendant. 
(The  answer  is  verified  as  in  other  cases.) 

No.  332.    Reply  of  plaintiff  to  cross-petition  of  H.  L.  R. 

(Same  caption   as   in   the  petition.) 

1.  Defense  to  First  Cause  of  Action  of  Cross-petition,- 
Now  comes  plaintiff  and  for  his  answer  to  that  part  of  the 
cross-petition  of  H.  L.  R.  designated  as  first  defense,  says  that  he 
denies  that  by  virtue  of  said  contract,  he  was  to  receive,  check  up 
invoices  of,  and  have  charge  of  all  lumber  so  delivered  upon  said 
premises,  for  said  defendant,  H.  L.  R. ;  he  also  denies  that  said  de- 
fendant H.  L.  R.,  had  delivered  upon  said  premises  also  a  large 
amount  of  lumber  and  material  which  plaintiff  claimed  was  necessary 
for  the  construction  of  said  building,  but  which  was,  in  fact,  not 
necessary  for  that  purpose,  or  that  she  had  received  there  any  amount 
of  material  or  labor  except  what  was  reasonably  estimated  as  being 
sufficient  for  the  construction  of  said  building;  he  also  denies  that 
he  took  and  carried  away  and  unlawfully  converted  and  disposed  of 
the  same  to  his  own  use  the  items  of  lumber  set  forth  in  said  cross- 
petition,  or  any  part  thereof,  or  of  the  lumber  purchased  and  delivered 
to  said  defendant  nn  said  premises,  or  that  the  value  of  said  lumber 
was  as  in   said   cross-petition   alleged. 

Wherefore,  plaintiff  renews  the  prayer  of  his  petition. 


Attorneys   for  Plaintiff. 
(This  answer  verified  as  in  other  cases.) 


Tebm.  ,  19- 


No. 


515  FORMS. 

No.  333.     The  verdict  of  the  jury. 

State  of  Ohio,  County,  ss.: 

Court  of  Common  Pleas  of  Said  County,  

E.    L., 

Plaintiff, 
vs. 
H.  L.  R.,  ft  al, 

Defendants. 

Verdict  of  Jury. 
"We,    the    jury,    being    duly    impaneled    and    sworn,    find    the    issues 
in    this    case    in   favor    of    the    plaintiff,    and    decree    the    amount    due 
to    plaintiff    on    his    petition    from    the    defendant,    H.    L.    R.,    at    the 

sum   of   $ .  • 

Foreman. 

No.  334.     Motion  to  set  aside  the  verdict,  and  for  new  trial. 
(Same  caption  as  in   the  petition.) 

Defendant,  H.  L.  R.,  moves  the  court  to  set  aside  the  verdict 
herein  and  for  a  new  trial  for  the  following  reasons,  to-wit: 

1.  Irregularity  in  the  proceedings  of  the  court  and  jury  and  in 
the  orders  of  the  court  by  which  the  defendant  H.  L.  R.  was  pre- 
vented  from   having  a   fair  trial. 

2.  Error  in  the  amount  of  recovery  upon  the  petition  of  plaintiff, 
the  same  being  too  large. 

3.  Error  in  the  assessment  of  the  amount  of  recovery  upon  the 
answer  and  cross-petition  of  defendant,  H.  L.  R.,  the  same  being 
too  small. 

4.  The  verdict  in  favor  of  plaintiff  is  not  sustained  by  sufficient 
evidence,   and    is   against   the    weight   of   the   evidence. 

5.  The  verdict  is  contrary   to  law. 

6.  The  court  erred  in  rejecting  evidence  offered  by  said  defendant. 

7.  The   court  erred   in   charging   the  jury. 

8.  For  other  errors  of  law  occuring  at  the  trial  and  excepted 
to  by  said  defendant  at  the  time. 


Attorneys  for  Defendant  H.  L.  R. 

No.  335.  Entry  'overruling  said  motion  and  giving  plaintiff 
a  judgment  on  the  verdict — And  also  decree  and  order  of 
the  court  ordering  a  sale  of  the  real  estate. 

(Same  caption   as   in   the  petition.) 

This  cause  coming  on  for  hearing  on  the  motion  of  the  defendant. 
H.  L.  R..  to  set  aside  the  verdict  herein  rendered,  and  for  a  new 
trial,  the  court,  on   consideration   thereof,   overrules  the  same. 

it  iCT  therefore  considered  by  the  court  that  the  said  E.  L.  recover 
from   the  said   H.  L.   R.  the  said  sum  of  $ .   heretofore,  by   the 


ilERWINE    ON    REAL    ACTIONS.  516 


verdict  of  the  jury,  found  due  him,  with  interest  from   the 


day   of  ,   at  the   rate  of   per  cent,   per  annum,   together 

with  his  costs  herein  expended,  and  execution  is  awarded  therefor, 
to  which  ruling,  order  and  judgment,  so  made  and  rendered  by  the 
court,   the   defendant  H.   L.   R.   excepts. 

And  this  cause  coming  on  to  be  heard  by  the  court  on  the  second 
cause  of  action  in  the  petition  of  plaintiff,  the  court  finds  that  the 
said  H.  L.  R.,  A.  E.  D.  and  the  said  The  O.  B.  &  L.  Co.  have  each 
failed  to  answer  or  demur  to  said  second  cause  of  action,  and  thereby 
have  confessed  the  allegation  of  each  thereof  to  be  true,  and  that 
there  is  due  from  the  defendant  H.  L.  R.  to  the  plaintiff,  E.  L., 
upon  the  account  and  mechanic's  lien   set  forth   in  said  petition,  the 

sum  of  $ ,  with  interest  on  said  sum  from  the  day  of 

,   19 ,   as   in   the    judgment   herein   entered,   and   that   said 

sum  is  a  valid  first  lien  on  the  premises  described  in  the  petition. 

It  is  further  ordered  and  decreed  that  unless  the  costs  of  this 
suit  and   the   amount   due   the   plaintiff,   with   interest,   shall   be  paid 

within  days   from   the  date  of  this   decree,   that  the  equity   of 

redemption  of  the  defendant  H.  L.  R.  in  the  said  premises  be  fore- 
closed, and  an  order  be  issued  to  the  sheriff  of  said  county,  direct- 
ing him  to  appraise,  advertise  and  sell  said  premises  according  to  law. 

Upon  motion  of  plaintiff,  and  for  good  cause  shown,  advertise- 
ment of  a  sale  in  a  German  newspaper  is  dispensed  with. 

No.  336.     The   order   of  sale   directed   by  the  clerk   to   the 
sheriff. 

State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

Whereas,    At   the   term    of    the   Court    of   Common    Pleas, 

held   at   ,    in   and    for    said    county,    on    the    day    of 

,    A.    D.    one    thousand    nine    hundred    and    ,    iu    the 

cause  of  E.  L.,  plaintiff,  and  H.  L.  R.,  et  al,  defendants,  it  was 
ordered  and  decreed  as  follows,  to-wit: 

That  the  plaintiff  recover  from  the   defendant,  H.   L.   R.,  the  sum 

of  $ and  his  costs   herein  expended;    that  said  sum   of  $ 

bear  interest  from  the   date  of  this  judgment  and  decree     ( . 

19 ),    at   the    rate   of   per   cent,    per   annum,    until    paid,    and 

that    if   not    paid   within   days,    that   execution    issue   therefor. 

And  it  is  further  ordered,  adjudged  and  decreed  that  unless  the  de- 
fendant,  H.   L.   R.,   shall,  within  days   from   the   entry   of   this 

decree,  pay,  or  cause  to  be  paid  to  the  clerk  of  this  court  the  costs 
of  this  case,  and   to  the  plaintiff  herein  the  said  sum  so   found   due 

as  aforesaid  with  interest  thereon  at  per  cent,  per  annum  from 

the  day  of  ,  19 ,  then  the   equity  of  redemption 

of  the  said  defendant,  H.  L.  R.,  shall  be  foreclosed  and  said  premises 

shall   be  sold,   and  an  order  of  sale  issue  to  the   sheriff  of 

County,  Ohio,  directing  him  to  appraise,  advertise  and  sell  said  prem- 
ises as  upon  execution,  and  report  his  proceedings  to  this   court  for 


517  FORMS. 

further   order,  the   following   described   lands   and   tenements,   situate 

in  the  County   of  ,   in  the  State  of  Ohio,  and  in  the  City  of 

,  and  bounded  and  described  as  follows:      (Here  describe  real 

estate). 

We  therefore  command  that  you  proceed  to  carry  said  order, 
judgment  and  decree  into  execution  agreeably  to  the  tenor  thereof, 
and  that  you  expose  to  sale  the  above  described  real  estate,  under 
the  statute  regulating  sales  under  execution,  and  that  you  apply 
the  proceeds  of  such  sale  in  the  satisfaction  of  said  judgment  and 
decree,  with  costs  and  interest  as  specified  therein,  and  that  you 
make    report    of    your    proceedings    herein    to    the    Court    of    Common 

Pleas  within  days  from  the  date  hereof,  and  bring  this  order 

with  you,  and  I  certify,  under  seal  of  court,  that  the  description  of 
the  property  herein  is  correctly  copied  from  the  records  of  this  case 
on  file  in  this  office. 

Witness  my  signature  as  clerk  of  our  said   Common  Pleas  Court, 

and   the   seal   of  said   court   at   ,    Ohio,   this   day   of 

,  A.  D.  19 .  , 

Clerk  of  the  Court  of  Common  Pleas,  Co.,  0. 

No.  337.     Sheriff's  procedure  under  said  order  of  sale,  and 
oath  of  appraisers. 

The  State  of  Ohio,  County,  ss.: 

To  .  and  ,  Freeholders  of  — County, 

State  of   Ohio: 

Whereas,   On  the  day   of  ,   19 ,   A.    D.,   E.   L. 

filed  in  the  Common  Pleas  Court  of  said  county  a  petition  vs.  H.  L.  R., 
et  al,  praying  said  court  for  an  order  to  sell  certain  real  estate  de- 
scribed  in  said  petition,   situate   in  the   county   of  ,    State   of 

Ohio,  and  City  of  ,  to-wit:      (Here  describe  real  estate),  and 

Whereas,  Afterwards,  to-wit:    at  the  term  of  said   court 

A.  D.,  19 ,  such  proceedings  were  had  upon  said  petition  by  said 

court   that   the    sheriff   of  County   was    ordered    to   sell    said 

real  estate  as  upon  judgments  and  executions   of  law. 

Now,  therefore,  according  to  the  statute  in  such  cases  made  and 

provided,    I    do   hereby    call   and   appoint   the   said   ,   

and  ,  an  inquest  and  do  require  them,  on  oath,  to  forthwith 

view,  estimate  and  appraise  the  real  value  of  said  premises  in  money, 
and  return   to  me  your   proceedings  under   your  hands   and   seals. 

Given    under   my    hand    and    seal    this    day    of , 

A.   D.,  19 .  , 

Sheriff  of  County,  Ohio. 

Personally    appeared    before    me,    ,     sheriff    of 

County  as  aforesaid,  the  above  named ,  and  -, 

appraisers  aforesaid,  who  are  judicious,  disinterested  freeholders  and 
citizens  of  said  County  of  ,  and  were  personally  sworn  ac- 
cording to  law  to  discharge  the  duties  of  said  appointment. 


MERWINE    ON    REAL    ACTIONS.  518 

Witness  my  hand  and  seal  this  day  of  ,  A.   D. 


19- 


Sheriff  of  '—  County,  Ohio. 

No.  338.    Appraisers'  report. 

To  .  Sheriff  of County  of  Ohio,  as  aforesaid: 

In  pursuance  of  the  foregoing  appointment  we  have  proceeded  to 
view  the  premises  described,  and  from  actual  view  of  the  same,  we 
do  estimate  the  real   value  thereof  in   money  to   be   $ — — . 

Given   under  our  hands   and   seals   this day   of  , 


19 .  ,    [Seal.1 

,    [Seal.] 

.    [Seal.] 

No.  339.     Proof  of  publication; — Legal  notice  of  sale  of  real 

estate. 

State  of  Ohio,  County,  ss.: 

,    cashier    for    The    ,    a    newspaper    published    at 

,  County,  Ohio,   personally  appeared  and  made  oath 

that   the   attached    printed   advertisement   was   published   for  

consecutive  weeks  in  said  newspaper,  from  and  after  ,  19 , 

and    that    said    paper    is    of    general    circulation    in    said    county    and 
State.  , 

Subscribed  and  sworn  to  this  — —  day  of ,  19 . 


Notary  Public,  Co.,  0. 

No.  340.     Legal  notice  of  sale  of  real    estate. 

(Same  caption  as  in   the  petition.) 

In  pursuance  of  an  order  of  sale  from  said  court  to  me  directed, 
I  will  offer  for  sale  at  public  auction,  at  the  door  of  the  court  house 

in  the  City  of  ,  Ohio,  on  the  — day  of ,  19 , 

at  o'clock  m.,   the   following   described   real   estate   situated 

in  the  County  of ,  State  of  Ohio,  and  in  the  City  of  , 

and  bounded  and  described  as  follows,  to-wit:  (Here  insert  descrip- 
tion  of  real  estate). 

Said  property  is  located  and  known  as  No. ,  — Street. 

Appraised  at  $ . 


Terms   of   sale,   cash. 


Sheriff  of  County,  Ohio. 


No.  341.     Sheriff's  return  of  his  proceedings  under  the  order 
of  sale. 

The  State  of  Ohio,  County,  ss.: 

In  obedience  to  (he  command  of  the  order  of  sale  hereto  annexed, 
I  did,  on  the day  of ,  A.  D.  one  thousand  nine  hundred 


bVJ  FORMS. 

and  ,  summon  ,  and  ,  three  dis- 
interested freeholders,  resident-;  of  said  county,  who  were  by  me 
duly   sworn  to  impartially  appraise  the   lands  and  tenements   there. u 

described,    upon   actual    view,   and   afterward   on    the   day   ot 

,  A.  D.  one  thousand  nine  hundred  and  ,  said  ap- 
praisers returned  to  me,  under  their  hands  and  seals,  that  they  did, 
upon  actual  view  of  the   premises,  estimate  and   impartially  appraise 

the  real  value  in  money  of  the  same  at  $ .     A  certified  copy  of 

said    appraisement    I    forthwith    deposited    in    the    office    of   the    clerk 

of  the  Court  of  Common   Pleas  of  said   county,  and   on   the  

clay  of  ,  A.  D.  one   thousand   nine   hundred  and  ,  at 

o'clock  m.,  of  said   day,   and  having  advertised   the   said 

lands  and  tenements  for  more  than  thirty  days  previous  to  the  date 
of  sale,  to-wit:  five  consecutive  weeks  on  the  same  day  of  the  week 
in   each    week,    and    in   pursuance   of    said    notice,    I    did,   on    the   said 

clay  of  ,  A.  D.  one  thousand  nine  hundred  and  , 

at  the  time  and  place  above  mentioned,  proceed  to  offer  said  lands 
and   tenements   at    public   sale   at    the    door   of   said    court    house,   and 

then    and    there    came    ,    who    bid    for    the    same    the    sum    of 

$ ,   and  said   sum   being  more   than  two-thirds   of   the  appraised 

value    thereof,    and    the    said being    the    highest    and    best 

bidder  therefor,  I  then  and  there  publicly  struck  off  and  sold  said 
lands  and  tenements  to  him  for  the  said  sum  of  $ . 


Slieriff  of County,  Ohio. 

No.  342.     Decree  and  order  of  court  confirming  sale,  order- 
ing deed  and  distributing  funds. 

(Same  caption  as   in   the  petition.) 

This  day  this  cause  came  on  to  be  heard  upon  motion  of  the 
plaintiff  for  confirmation  of  sale  made  under  the  former  order  of 
this  court,  and  on  plaintiff  producing  the  sheriff's  return  of  the  sale 
made  under  said  former  order  of  this  court,  and  the  court,  on  careful 
consideration  thereof,  and  of  all  of  the  proceedings  of  said  sheriff, 
and  upon  the  evidence  adduced,  being  satisfied  that  the  same  have 
been  in  all  respects  in  conformity  to  law  and  the  former  orders  of 
this  court,  it  is  ordered  that  said  proceedings  and  the  sale  be,  and 
they  are  hereby    approved   and   confirmed. 

Tt  io  further  ordered  that  said  sheriff  convey  to  the  said  

a  good  and  sufficient  deed  to  said   property  according  to  law ;  that  said 

be,    and    he    is   hereby    subrogated    to   all    the    rights   of   the 

said  E.  L.,  and  all  the  rights  of  the  lienholders  of  said  premises  so 
far  as  may  be  necessary  for  the  protection  of  their  title,  and  a  writ 
of  possession  is  awarded  to  put  them  into  possession  of  said  premises. 

It  is  therefore  ordered  that  the  clerk  cause  satisfaction  of  the 
mechanic's  lien  herein  sued  upon  to  be  entered  on  the  records  thereof 
in  the  office  of  the  recorder  of  County,  Ohio. 

And  the  court  coming  now  to  distribute  the  proceeds  of  said  sale, 


MERW1NE    ON    REAL   ACTIONS.  520 

amounting  to  $ it  is  ordered  that  the  sheriff   out  of  the  money 

in  his  hands,  pay 

First.-  To  the  treasurer  of  this  county  the  general  taxes  and 
penalties   due   on  said   premises,   amounting   to   $ . 

Second:  To  the  treasurer  of  this  county  the  amount  of  the  street 
assessments    and    interest    thereon    du3    and    payable,    amounting    to 


Third:     The   costs   herein,   taxed   at    $ . 

Fourth:     To  E.  L.,  the  sum  of   % ,  to  be  applied  toward  the 

payment  of  the  amount  heretofore  herein  found  due  him,  to-\vit: 
the  sum  of  $ . 

Nc.  343.     Sheriff's  deed  in  foreclosure  of  mechanic's  lien. 

To  all  Persons  to  whom  These  Presents  shall  come,  Greeting: 

Whereas,  on  the  day  of  ,  19 ,  E.  L.,  plaintiff, 

filed  his  certain  petition  and  then  and  thereby  commenced  an  action 

in  the  Court  of  Common  Pleas  of  County,  Ohio,  against  H. 

L.  R.,   (t  al,  and  numbered  on  the   docket  of  said    court  as  case  No. 

,    praying   therein,    among   other    things,    for    the    sale    of    certain 

real  estate  in  said  petition  and  hereinafter  described;  and 

Whereas,  such   proceedings  were   had  in  said  action,   that  by  the 

consideration    and    judgment    of   said    court,    en    the   day    of 

, >   19 ,  at  the tsrm,   13 ,   said   E.   L.   recovered 

a  judgment   against   the   said   II.    L.   R.    for  the   sum   of   $ ,   and 

costs   of    suit;    and 

Whereas,  it  was  then  and  there  further  ordered,  adjudged  and 
decreed  by  said  court  in  said  action,  that  unless  the  said  H.  L.  R. 
should   pay   the   costs   of  said   suit  and   to  said   E.   L.   the  amount  so 

found   due,   within days    from   the   entry    of   said   decree,    said 

premises   should   be   sold  and  an   order  of  sale   should   issue   therefor 

to  the  sheriff  of   said  County  of  ,   commanding  him   that  he 

should  cause  the  lands  and  tenements  in  said  petition  and  order 
mentioned  and  hereinafter  described,  to  be  appraised,  advertised  and 
sold  according  to  law,  and  return  his  proceedings  to  said  court;    and 

Whereas,  afterwards,  on  the  day  of  ,  19 ,  in 

pursuance  of  said  order  and  judgment  of  said  court  founded  thereon, 
an    order   of   sale    issued    from    said    court    in   said    cause,    directed   to 

,  sheriff  of County,  Ohio,  commanding  him  to  execute 

said  order,  and  in  all  things  to  be  governed  by  the  provisions  of 
the  statute  in  such  cases  made  and  provided,  and  of  said  order, 
with  his  proceedings  thereon,  he  should  make  clue   return;    and 

Whereas,  ,  sheriff  aforesaid,  having  caused  said  premises 

to  be  aTi^raised  and  a  copy  of  the  appraisement  to  be  filed  in  the 
office  of  the  clerk  of  said  court,  and  having  advertised  the  time  and 

place  of  selling  the  same  in  The  ,  a  newspaper  printed   and 

of  general   circulation   of  and    in    said   county   for   a   period   of  

days  prior  to  the  date  of  said  sale,  and  otherwise  complied  with  said 
order  and  the  provisions  of  the  statute  in  such  case  made  and  pro- 
vided, did,  on   the  day  of  ,   19 ,   at  the   door  of 


521  FORMS. 

the  court  house  in  said  county,  at  o'clock,  m.,  of  said  day, 

expose  to  sale    at  public  auction,  the  premises  hereinafter  mentioned 

and  described,  and  thereupon ,  having  bid  for  said  premises 

the   sum    of   $ ,    and   said   sum    being  the   highest   and   best   bid 

offered  for  the  same,  and  being  more  than  two-thirds  the  appraised 
value  thereof,  the  said  premises  were  then  and  there  struck  off  to 
him;   and 

Whereas,  the  court,  at  its  term,  19 ,  having  examined 

the  proceedings  aioresaid  in  the  premises,  under  said  order  of  sale, 
and  being  satisfied  that .  the  sale  had  been  had  in  all  respects  in 
pursuance  to  said  judgment  and  order  of  sale,  and  in  accordance 
with  the  provisions  and  requisitions  of  the  statutes  regulating  such 
sales,  did  order  that  said  sale  be  confirmed,  and  that  said  sheriff  of 

County,  Ohio,  should  convey  the   said   premises,  by   deed   in 

fee  simple,  to  the  said  . 


Now     Know    Ye    that    I,    the    said    ,    sheriff    of    

County,  Ohio,  as  aforesaid,  by  virtue  of  said  judgment,  order  of  sale, 
sale  and  confirmation  and  of  the  statute  for  such  cases  made  and 
provided,   and    for   and    in    consideration   of   the   premises   herein   and 

the  sum  of  $ ,  which  I  acknowledge  to  have  received  from  the 

purchaser  above  named,  do  hereby  grant,  sell  and  convey  unto  him, 
the  said  ,  his  heirs  and  assigns  forever,  the  following  de- 
scribed real  estate  situated  in  the  County  of  ,  State  of  Ohio, 

and   in   the  City  of  ,   and  bounded   and   described  as  follows, 

to-wit:  (Here  insert  description  of  real  estate),  together  with  all 
the  privileges  and  appurtenances  thereto  belonging,  and  all  the  riiht, 
title  and  interest  of  the  said  H.  L.  R.,  and  of  all  other  parties  to 
said  suit  of  and  to  the  same. 

To    Have    and    to    Hold    said    premises    aforesaid    unto    the    said 

,   his   heirs   and   assigns    forever,   as   fully  and   completely   as 

the  said  ,  sheriff  of  County,  Ohio,  by  virtue  of  said 

judgment,  order  of  sale,  sale  and  confirmation  and  cf  the  statute 
made  and  provided  for  such  cases,  might  or  should  sell  or  convey 
the  same 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 
day   of  ,   19 . 


Sheriff  of County,  Ohio. 

State  cf  Ohio,  County,  ss.: 

Personally  appeared  before  me,  a  notary  public  within  the  afore- 
said  county,   the   above   named   — ,    sheriff   of   County, 

Ohio,  the  grantor  in  the  above  deed  of  conveyance,  who  acknowledged 
the  signing  and  sealing  of  the  same  to  be  his  voluntary  act  and 
deed  for  the  uses  and  purposes  therein  mentioned. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 
day  of  ,  19 . 


Notary  Public, County,  0. 


CHAPTER  XIV. 


THE  LAW  AND  PROCEDURE  BY  WHICH  REAL  ESTATE 
IS  SOLD  UNDER  FORECLOSURE  OF  TAX  LIEN. 


Section. 

397.  The  procedure  in  foreclosure 
of  tax  lien. 

3!l8.  When  the  lien  of  the  State  at- 
taches. 

399.  Penalty    for    non-payment    of 

real  estate  tax. 

400.  Owner  of  life  estate,  guardian, 

agent,  etc.,  to  pay  tax, 
when. 

401.  All  persona  holding  lands  shall 

list  lands  for  taxation — 
Penalty  for  neglect. 

402.  Paying  taxes  on  lands — Agents 

and  attorneys — Payment  by 
other  than  owner. 

403.  Guardian's    liability    for    neg- 

lect to  pay  taxes. 

404.  Duty     of     executors     to     pay 

taxes,  when. 

405.  Duty  of  agents  and  attorneys 

as  to  payment  of  taxes. 

406.  The    lien    "f    such    executors. 

guardian,  or  attorney,  on 
the  land,  for  money  ad- 
vanced  for   taxes. 

407.  Liability     and     forfeiture     of 

tenants  in  curtesy  or  dower 
for  neglect — Redemption  in 
such  case. 

408.  Any  one  claiming  lien  on  real 

estate  shall  have  the  tax 
lien  on  all  taxes  paid  by 
him. 
400.  Rights  of  a  joint  owner  who 
pays  Ids  portion  of  tax — 
Those  not  paying  held  lia- 
ble as  if  partition  had  not 
been  made — A  tax  on  lands 
at  judicial  sale  to  be  paid 
out  of  proceeds  of  sale — 
Pari  owner  paying  tax  on 
whole  tract  shall  have 
lien. 


Sectiox. 

410.  General  taxes  paid  out  of  pro- 

ceeds of  judicial  sale,  when. 

411.  The    rule    as    to    payment    of 

assessments,  out  of  pro- 
ceeds of  a  judicial  sale  of 
real  estate. 

412.  Delinquent     land     list — Cuya- 

hoga and  Hamilton  Coun- 
ties— How  published. 

413.  A  failure  to  comply  with  the 

requirement  of  the  statute 
as  to  advertisement  defeats 
title  of  purchaser. 

414.  Auditor  to  compare  delinquent 

list   with   duplicate. 

415.  Copy  to  be  inserted  at  fort  of 

record  of  delinquent  list — 
Certificate  as  to  their  pub- 
lication. 
410.      Proceedings    when     delinquent 
list  not  published. 

417.  Omitted   publication. 

418.  Paper    containing    list    to    be 

sent  to  auditor  of  State  and 
printers'  account. 
410.      Sale  of  delinquent  land — Con- 
ditions— Cuyahoga  County. 

420.  How   to   proceed   if   purchaser 

fails  to  pay. 

421.  County   auditor   or    deputy   to 

attend  sales  of  delinquent 
lands — To  forward  copy  of 
record  of  sale*  to  auditor 
of  State. 

422.  Certificate  of  purchase   of  de- 

linquent     lands — Duty      of 
county  surveyor  under  such 
certificate. 
When    survey   and    deeds   shall 
Im'  made. 


423 
424 


Certificates  assignable. 


522 


523 


TAX   LIEN    FORECLOSURE. 


§397 


Section.  Sect 

425.     When  auditor  can  make  deed       £38. 

— When  two  or  more  tracts 

are  sold   to  one   purchaser,       439. 

auditor    to   make   one   deed. 
420.     Title  by  deed  and  its  effect  as 

evidence.  I  HI. 

427.  Sale  for  tax  cuts  out  previous 

lien  and  bars  dower.  441. 

428.  In   what   case   survey  of   lain! 

sold     for    taxes      dispensed       442. 
with. 

429.  Purchaser  of  the  interests  of       443. 

joint  tenant  to  hold  in  com- 
mon. 444. 

430.  Title  acquired  at  tax  sale  in-       445. 

valid— When. 

431.  In     tax     sale     of     delinquent       440. 

lands,  the  statute  authoriz- 
ing the  sale  to  be  strictly 
construed.  447. 

432.  Lien    of     tax     purchaser     for 

purchase     money,     etc.,     if       448. 
sale  valid. 

433.  Sale     not     invalid     if      tract 

charged  in  wrong  name. 

434.  The    real    estate    must    be    de- 

scribed so  as  to  sufficiently       449. 
identify  the  property. 

435.  Auditor    may    make   deeds    of        450. 

lands  heretofore  sold. 
430.     When    certificates    have    been 

lost       or      destroyed — How       451. 

deeds   made. 
437.     How  auditor  to  keep  minutes 

of  deeds  made. 


ION. 

And  to  note  redemption  of 
lands. 

Sale  of  land  for  taxes  regular- 
ly paid,  void — Proceedings 
in  such  case. 

When  auditor  may  make  deeds 
for  lands  in  other  counties. 

Auditor  to  transfer  land  sold 
for  taxes. 

Applications  for  redemption  to 
be  made  to  auditor. 

Redemption  of  delinquent 
lands — Limitation. 

How  lands  may  be  redeemed. 

Joint  owner,  etc.,  may  redeem 
his  proportion. 

Proceedings  of  party,  treas- 
urer, and  auditor  on  appli- 
cation to  redeem. 

Payment  of  redemption  money 
to   tax    purchaser,  etc. 

When  auditor  to  note  on  back 
of  certificate  that  deposit 
has  not  been  made — Note  of 
redemption  on  record  of  tax 
sales. 

Tax  purchaser's  improvements 
— How  paid  for,  etc. 

Sales,  etc.,  for  taxes  of  lands 
and  lots,  etc. — Under  per- 
manent lease. 

Proceedings  when  land  is  re- 
turned delinquent,  upon 
which  taxes  were  paid. 


Sec.  397.     The  procedure  in  foreclosure  of  tax  lien. 

The  action  to  sell  real  estate  to  satisfy  the  lien  for  taxes 
is  pretty  much  the  same  as  the  action  to  foreclose  a  mortgage, 
judgment  lien,  mechanic's  lien  or  any  other  lien.  The  rec- 
ords in  the  proper  county  offices  should  be  searched  for  liens 
and  incumbrances  and  everyone  made  a  party  to  the  action 
who  claims  an  interest  in  the  real  estate  sought  to  be  sold, 
just  as  in  the  other  actions  where  a  petition  is  filed  asking 
for  the   sale  of  real   estate. 

The  name  of  the  owner  of  the  real  estate    at  the  time  of 
the  auditor's  sale   for  delinquent   taxes,  should   be  alleged  as 
well  as  an  accurate  description  of  the  real   estate.     It  shonlc 
allege   that  the  taxes  thereon  were   not  paid   as   required  by 


§  398  MERWINE    ON    REAL   ACTIONS.  524 

law,  and  that  at  the  time  required  by  law,  the  real  estate 
was  sold  to  the  plaintiff  or  his  assignor  for  a  certain 
sum,  being  the  taxes,  penalties  and  interest  delinquent;  that 
there  was  issued  to  the  plaintiff,  or  his  assignor,  a  cer- 
tificate for  the  same  and  that  plaintiff  is  the  owner  and 
holder  thereof;  that  by  reason  thereof,  he  has  a  lien  on  the 
real  estate  for  the  sum  so  paid,  the  taxes,  penalty,  interest, 
costs  of  the  certificate  and  for  taxes,  penalty  and  interest  paid 
for  taxes  on  the  real  estate  since  said  sale ;  that  said  lien  is  now 
due  and  unpaid,  and  that  the  same  has  become  absolute. 

The  interest  of  any  other  party  in  this  real  estate  should 
be  set  forth,  and  the  party  claiming  such  interest  should  be 
required,  by  proper  allegations  of  the  petition,  to  set  forth 
the  nature  and  amount  of  the  same,  or  in  default  thereof,  be 
forever  barred  from  asserting  the   same  in  the  action. 

The  petition  should  contain  a  prayer  that  the  lien  may  be 
foreclosed,  and  the  real  estate  sold  according  to  law,  and  that 
the  proceeds  arising  from  such  sale  be  applied  to  the  satisfaction 
of  such  lien  and  for  such  other  and  further  relief  as  the 
nature  of  the  case  may  require. 

The  decree  and  all  of  the  proceedings  in  the  case  following 
the  petition  are  the  same  as  in  other  actions  to  foreclose  a 
lien.  Here  reference  is  made  to  the  first  chapter  of  this  work 
as  to  parties  to  the  action,  venue,  service  on  infants  and  the 
defense  for  them  and  the  defense  for  insane  persons,  the 
publication  of  summons  on  non-residents  and  upon  unknown 
heirs.  There  will  be  found  discussed  in  proper  order  all  of 
the  necessary  steps  required  to  give  the  court  power  to  hear 
and  determine  the  rights  of  the  various  parties  to  the  action.1 

Sec.  398.     When  the  lien  of  the  State  attaches. 

The  lien  of  the  State  for  taxes  levied  for  all  purposes,  in 
each  year,  attaches  to  all  real  property  subject  to  such  taxes, 
on  the  day  preceding  the  second  Monday  of  April,  annually, 
and  continues  until  such  taxes,  with  any  penalty  which  shall 
accrue  thereon,  are  paid  ;  all  personal  property  subject  to  taxa- 

1  See  No.  367   for   form  for  audi-  all  orders  of  sale,  writs  and  process, 

tor's  certificate  to  the  purchaser  of  from   the   filing   of  the   petition   on 

veal    estate   ai    delinquenl    tax    sale.  up  to,  and  including,  the  deed  of  the 

See  No.  353  and  following  for  form  sheriff  to  the  purchaser  of  the  real 

tor    petition    for    foreclosure   of   tax  estate. 
lien  against  unknown  heirs,  and  for 


525  TAX   LIEN    FORECLOSURE.  §  399 

tion  is  made  liable  to  be  seized  and  sold  for  taxes;  and  the 
personal  property  of  any  deceased  person  is  liable,  in  the 
hands  of  any  executor  or  administrator,  for  any  tax  due  on 
the  same  by  any  testator  or  intestate.2 

Sec.  399.     Penalty  for  non-payment  of  real  estate  tax. 

When  one-half  the  taxes,  charged  against  any  entry  of  real 
estate,  is  not  paid  on  or  before  the  twentieth  day  of  December, 
in  that  year,  or*  collected  by  distress  or  otherwise  prior  to  the 
February  settlement,  a  penalty  of  fifteen  per  cent,  thereon 
is  added  to  such  half  of  said  taxes  on  the  duplicate;  and 
if  the  taxes  and  penalty,  including  the  remaining  half  of 
such  taxes,  is  not  paid  on  or  before  the  twentieth  of  June 
next  thereafter,  or  collected  by  distress  or  otherwise  prior  to 
the  next  August  settlement,  the  same  penalty  is  charged  on 
said  last  half  of  said  taxes;  and  the  amount  of  the  whole  to- 
gether constitutes  the  delinquent  taxes  on  such  real  estate, 
to  be  collected  in  the  manner  that  is  or  may  be  prescribed 
by  law;  and  if  the  amount  of  such  delinquent  taxes  and  penal- 
ty, together  with  one-half  of  the  taxes  charged  against  such 
real  estate  for  the  current  year,  is  not  paid  on  or  before  the 
twentieth  day  of  December,  of  the  same  year,  the  said  delin- 
quent taxes  and  penalty,  and  the  whole  of  the  taxes  of  the 
current  year,  then  become  due  and  are  collected  by  the  sale 
of  such  real  estate  in  the  manner  that  is  or  may  be  authorized 
by  law;  and  in  case  the  first  half  of  the  taxes  charged  upon 
any  real  estate,  be  paid  on  or  before  the  twentieth  day  of 
December,  as  provided  by  law,  but  the  remaining  half  thereof 
be  not  paid  on  or  before  the  twentieth  day  of  June  next  there- 
after, or  be  collected  by  distress  or  otherwise,  prior  to  the 
next  August  settlement,  as  provided  by  law,  then  the  same 
penalty  is  added  to  such  unpaid  taxes,  and  the  same  is  treated 
as  delinquent  taxes,  and,  with  the  taxes  of  the  current  year, 
collected  by  the  sale  of  such  real  estate,  as  aforesaid.3 

=  Oen'l     Code,     §  5671      (R.     S.  s  G«n'l      Code.      §5078      (R.      S. 

§2838).     See  in  this  connection  R.  §  2844).     For   construction  of  this 

S.   §  (.044,   Creps  v.   Baird.   3   0.   S.  section  and  1053,  see  White  v.  Wood- 

277:    Chapman   v.  Sollars.  38  O.   S.  ward.  44  0.  S.  347;  Hunter  v.  Borck, 

331:    Sehott    v.    Wastenney,    13    C.  51  0.  S.  320.  See  also  Ward  v.  Ry. 

C.  340;  aff'd  in  50  O.  S.  410.  Co.,   3  N.   P.   275;    Ry.  v.  Wolf,   i3 

C.  C.  374. 


§§400-402  MERWINE    ON    REAL    ACTIONS  526 

Sec.  400.  Owner  of  life  estate,  guardian,  agent,  etc.,  to  pay- 
tax — When. 
Every  person  is  liable  to  pay  tax  for  the  lands  or  town  lots 
of  which  he  or  she  stands  seized  for  life,  by  curtesy,  in  dower, 
or  by  a  husband  in  right  of  his  wife,  or  has  the  care  of 
as  guardian,  or  as  agent,  or  attorney,  having  funds  of  the 
principal  in  his  or  her  hands.1 

Sec.  401.     All  persons  holding  lands  shall  list  the  same  for  taxa- 
tion— Penalty  for  neglect. 

It  is  made  the  duty  of  every  person  seized  of  or  holding 
lands,  to  list  the  same  for  taxation  with  the  county  auditor, 
on  or  before  the  third  Monday  of  May  next  after  the  same  is 
subject  to  taxation,  and  in  case  of  neglecting  to  list  the  same 
as  aforesaid,  the  county  auditor  is  required,  when  the  same 
shall  thereafter  be  listed,  to  charge  upon  each  tract  so  neg- 
lected to  be  listed,  the  taxes  for  each  year  the  same  shall  have 
been  omitted  after  becoming  liable  for  taxation,  together  with 
twenty-five  per  centum  penalty  and  six  per  centum  interest 
thereon,  in  addition  to  the  taxes  of  the  current  year.5 

Sec.  402.  Paying  taxes  on  lands — Agents  and  attorneys — Pay- 
ment by  other  than  owner. 
The  statute  makes  it  the  duty  of  each  and  every  person, 
holding  lands  as  aforesaid,  to  pay  the  tax  which  may  be 
assessed  thereon  each  and  every  year;  provided,  that  agents 
and  attorneys  shall  not  thus  be  obliged  to  pay  such  taxes, 
unless  sufficient  money  of  their  principals  be  in  their  bands 
to  pay  the  same ;  and  provided  further,  that  any  person  own- 
ing lands  as  aforesaid,  may  authorize  or  consent  to  the  pay- 
ment by  any  other  person,  of  the  taxes  levied  upon  such  lands 
and  any  person  so  paying  such  taxes  shall  first  obtain  from 
the  owner  or  owners  of  such  lands  a  certificate  of  authority 
to  pay  such  taxes,  signed  in  the  presence  of  two  witnesses,  and 
duly  acknowledged  before  an  officer  authorized  to  administer 
oaths,  which  certificate  shall  contain  an  accurate  description 
of  the  property  ;is  shown  by  the  tax  duplicate,  the  amount 
of  the  taxes  levied  thereon.  the  year  for  which  the  same  wTere 

*Gen'l      Code.      §5680      ("R.      S.  r>  R.   P.   §   2S4fi.  Cincinnati  v.  Yat- 

§  2845).      Campbell    v.    Park.   32   O.        man.  30  O.  S.  276:  Myers  v.  Aikens, 
56.  8  C.  C.  228. 


527  TAX    LIEN    FORECLOSURE.  §§403,404 

levied  and  the  name  of  the  person  authorized  to  pay  the  same 
and  the  date  of  the  payment  thereof,  and  shall,  within  ten 
days  from  the  date  of  the  payment  of  such  taxes,  tile  the  same 
in  the  office  of  the  county  recorder  for  record;  and  when  such 
certificate  has  been  filed  as  aforesaid,  the  amount  thereof  with 
interest  at  the  rate  of  eight  per  cent,  per  annum  from  the 
date  of  the  payn  i  it  <  f  such  tax,  shall  operate  as  a  lien  upon 
such  real  estate  in  preference  to  all  other  liens;  and  the  money 
so  paid,  together  with  the  interest  thereon,  may  also  be  re- 
covered by  action  for  money  paid  to  his  use  against  the  person 
or  persons  legally  liable  for  the  payment  of  such  tax ;  winch 
action  may  be  brought  by  such  person  so  paying  such  tax 
as  aforesaid,  at  any  time  after  the  expiration  of  one  year 
from  the  date  of  the  payment  thereof;  that  such  certificate 
so  filed  as  aforesaid  with  the  county  recorder,  shall  be  re- 
corded and  cancelled  in  the  same  manner  as  mortgages  on  real 
(state,  in  a  book  to  be  separately  kept  and  indexed  by  him  for 
that  special  purpose,  and  such  recorder  shall  receive  such  fees 
as  are  prescribed  by  law  for  recording  real  estate  mortgages.6 


Sec.  403.     Guardian's  liability  for  neglect  to  pay  taxes. 

Every  person  holding  lands  as  guardian,  as  aforesaid,  and 
neglecting  or  refusing  to  list  or  pay  the  taxes  on  the  same, 
in  manner  aforesaid,  is  made  liable,  in  an  action  to  his  or 
her  ward  or  wards,  for  any  damage  his  or  her  ward  or  wards 
may  have  sustained  by  such  neglect  or  refusal.7 


Sec.  404.     Duty  of  executors  to  pay  taxes — When. 

Every  person  so  being  seized,  or  having  the  care  of  lands 
as  aforesaid,  as  executor,  and  who  neglects  or  refuses  either 
to  list  or  jiay  the  taxes  on  the  same,  in  manner  aforesaid,  is 
made  liable,  in  an  action  to  the  devisee  or  devisees  of  the 
person  whose  executor  he  is,  for  any  damage  occasioned  by 
such  neglect.8 


eGen'l       Code.       §   5fi81        (R.    S.  t<;0T1-]      Code.       5   5R84       (R.       S. 

§  2847).      See    as    to    taxation    for        $2848).      See   Piatt   v.    St.   Clair.   (J 
building  on  perpetual  lease.    Josly  v.       O.  227. 

Spellman.  12  W.  L.  B.  7.  BGen'l      Code,      §5085       (R.      S. 

§   2849). 


§§  405-407  MERWINE    ON    REAL   ACTIONS.  528 

Sec.  405.     Duty  of  agents  and  attorneys   as  to  payment  of 

taxes. 
Every  person  having  the  care  of  lands,  as  agent  or  attorney, 
having  funds  of  the  principal  in  his  hands,  neglecting  or  re- 
fusing either  to  list  or  pay  the  taxes  on  such  lands  is  made 
liable,  in  an  action  to  his  principal,  for  any  damage  such  princi- 
pal may  have  sustained  by  such  neglect  or  refusal.9 

Sec.  406.  The  lien  of  such  executor,  guardian,  or  attorney 
on  the  land,  for  money  advanced  for  taxes. 
Every  attorney,  agent,  guardian,  or  executor,  seized  or 
having  the  care  of  lands  as  aforesaid,  who  shall  be  put  to 
any  trouble  or  expense,  in  listing  or  paying  the  taxes  on  such 
lands,  or  who  has  to  advance  his  own  money  for  listing  or 
paying  the  taxes  on  such  lands,  will  be  allowed  a  reasonable 
compensation  for  the  time  spent,  the  expenses  incurred,  and 
monev  advanced,  as  aforesaid,  which  shall  be  deemed  in  all 
courts  a  just  charge  against  the  person  for  whose  benefit  the 
same  shall  have  been  advanced.10 

Sec.  407.     Liability  and  forfeiture   of  tenants   in   curtesy   cr 
dower  for  neglect — Redemption  in  such  case. 

If  any  person  who  is  seized  of  lands  as  tenant  by  curtesy, 
or  in  dower,  or  who  is  seized  of  lands  for  life,  or  in  right  of 
his  wife,  neglect  to  pay  the  taxes  thereon  so  long  that  such 
lands  are  sold  for  the  payment  of  the  taxes,  and  does  not, 
within  one  year  after  such  sale,  redeem  the  same,  according 
to  law,  such-  person  thereby  forfeits  to  the  person  or  persons 
next  entitled  to  such  lands  in  remainder  or  reversion,  all  the 
estate  which  he  or  she,  so  neglecting  as  aforesaid,  may  have 
in  said  lands;  and  the  remainder  man  or  reversioner  may  re- 
deem said  lands  in  the  same  manner  that  other  lands  may 
be  redeemed  after  having  been  sold  for  taxes;  and,  moreover, 
the  person  so  neglecting  as  aforesaid,  will  be  liable  in  action 
to  the  person  next  entitled  to  the  estate,  for  all  damages  such 
persons  may  have  sustained  by  such  neglect.11 

»Gen'l      Code,      §5686  (R.      P.  §2852).       This     statute     lias     l>oen 

§   2850).  hold     to     be     constitutional.        Mc- 

"•<;<•„•]      Code,     §  5687  (R.     S.  Millan  v.   Robins,  5   O.  28.      Where 

§  2851 ) .     Sec  Gary  v.  May.  1G  O.  66.  reversioner  had  land  entered  for  h\\- 

ii  Gen'l      Code,      §  5G88  ( R.      S.  ation,   non-payment   of   tax   therecn 


529 


TAX    LIEX    FORECLOSURE. 


§§408,409 


Sec.  408.     Any  one  claiming  lien  on  real  estate  shall  have  the 
tax  lien  on  all  taxes  paid  by  him. 

Any  person  having  a  lien  upon  real  estate  may  pay  the 
taxes  thereon  in  so  far  as  the  same  are  a  lien  upon  such  real 
estate;  and  the  amount  of  taxes  so  paid  will  from  the  time 
of  payment,  operate  as  a  lien  upon  such  real  estate,  in  prefer- 
ence to  all  other  liens,  and  the  money  so  paid  may  also  be 
recovered  by  action  for  money  paid  to  his  use  against  the 
person  or  persons  legally  liable  for  the  payment  of  such  taxes.12 


Sec.  409.  Rights  of  a  joint  owner  who  pays  his  portion  of 
tax — Those  not  paying  held  liable  as  if  partition  had  not 
been  made — A  tax  on  lands  at  judicial  sale  to  be  paid 
out  of  proceeds  of  sale — Part  owner  paying  tax  on  whole 
tract  shall  have  lien. 

The  statute  provides  that  in  all  cases  where  any  tract  of 
land  may  be  owned  by  two  or  more  persons,  as  joint  tenants, 
co-parceners,  or  tenants  in  common,  and  one  or  more  of  the 
proprietors  shall  have  paid,  or  may  hereafter  pay  the  tax, 
or  tax  and  penalty,  charged  or  chargeable  on  his  or  their 
proportion  or  proportions  of  such  tract,  and  one  or  more  of 
the  remaining  proprietors  shall  have  failed,  or  may  hereafter 
fail  to  pay  his  or  their  proportion  of  the  tax,  or  tax  and 
penalty,    charged   or   chargeable   on   said   land,   and   partition 


by  doweresa  will  not  forfeit,  din- 
ger v.  Hoffman,  6  W.  L.  J.  400. 
Where  tenant  for  life,  without  im- 
peachment for  waste  suffered  the 
land  to  be  sold  for  tax,  he  forfeits 
his  life  estate,  and  the  reversioner 
may  recover  in  ejectment.  McMil- 
lan v.  Robins,  5  O.  28.  This  for- 
feiture of  the  statute  means  a  valid 
sale.  If  the  tax  sale  is  invalid  then 
no  valid  deed  can  be  made.  Esta- 
brook  v.  Ryan,  52  O.  S.  318.  see  also 
5  C.  C.  315.  The  act  of  forfeiture 
by  life  tenant  does  not  per  se  cast 
title  on  the  reversioner  or  remainder- 
man. Title  can  come  to  them  only 
by  decree  of  court.  Johnson  v. 
Petitt,  1  C.  S.  C.  R.  25.  The  pur- 
chaser of  an  estate  in  remainder  at 
a  sale  on  foreclosure  of  a  mortgage 
upon  the  estate  made  subject  to  the 


life  estate  on  which  the  remainder 
is  limited  cannot  claim  a  forfeiture 
of  the  life  estate  from  a  sale  of  the 
lands  at  delinquent  tax  sale  and  a 
failure  to  redeem  within  the  time 
prescribed  by  this  statute,  when  the 
omission  occurred  prior  to  the 
foreclosure,  and  there  is  nothing  to 
show  but  that  the  forfeiture  was 
waived  by  the  mortgagor.  Chaffee 
v.  Foster*  52  O.  S.  358.  Forfeiture 
of  the  land  does  not  defeat  the  estate 
of  doweress.  There  must  be  an 
actual  sale.  Clason  v.  Ward,  1  N. 
P.  218.  Creditors  of  one  who  owns 
a  homestead  cannot  claim  a  for- 
feiture. Allen  v.  Russell,  50  O.  S. 
137. 

isGen'l  Code,  §5689  (R.  S. 
§  2852).  See  Bates  v.  Peoples,  etc., 
42  0.  S.  655. 


§  410  MERWINE    ON    REAL    ACTIONS.  530 

of  said  land  has  or  shall  be  made  between  them,  the  tax,  or 
tax  and  penalty,  paid  as  aforesaid,  shall  be  deemed  to  have 
been  paid  on  the  proportion  or  proportions  of  said  tract,  set 
off  to  the  proprietor  or  proprietors,  who  paid  his  or  their 
proportion  of  said  tax,  or  tax  and  penalty;  and  the  proprietor 
or  proprietors  so  paying  the  tax,  or  tax  and  penalty,  as  afore- 
said, shall  hold  the  proportion  or  proportions  of  such  tract 
set  off  to  him  or  them  as  aforesaid,  free  from  the  residue  of 
the  tax,  or  tax  and  penalty  charged  on  said  tract,  set  off 
to  the  proprietor  or  proprietors  who  shall  not  have  paid  his 
or  their  proportion  of  said  tax,  or  tax  and  penalty,  shall  be 
charged  with  and  held  bound  for  the  portion  of  said  tax, 
or  tax  and  penalty,  remaining  unpaid,  in  the  same  manner 
as  if  said  partition  had  been  made  before  said  tax,  or  tax 
and  penalty,  had  been  assessed,  and  said  proportion  or  pro- 
portions of  said  tract,  originally  listed  for  taxation,  in  the 
name  or  names  of  said  delinquent  proprietors;  and  whenever 
any  lands  so  held  by  tenants  in  common  shall  be  sold  upon 
proceedings  in  partition,  or  shall  be  taken  by  the  election  of 
any  of  the  parties  to  such  proceedings,  or  when  any  real 
estate  shall  be  sold  at  judicial  sale,  or  by  administrators, 
executors,  guardians  or  trustees,  the  court  shall  order  the 
taxes  and  penalties,  and  the  interest  thereon  against  such 
lands,  to  be  discharged  out  of  the  proceeds  of  such  sale  or 
election;  and  any  part  owner,  who  shall  pay  the  tax  on  the 
whole  tract  or  tracts  of  which  he  is  part  owner,  shall  have 
a  lien  on  the  shares  or  parts  of  the  other  part  owner  for 
the  tax  paid  in  respect  of  their  shares  or  parts,  which,  with 
interest  thereon,  he  shall  be  entitled  to  receive  on  sale  or  parti- 
tion of  such  lands,  and  the  collection  of  which,  with  interest, 
he  may  enforce  like  any  other  lien  or  charge.13 

Sec.  410.     General  taxes  paid  out  of  proceeds  of  judicial  sale 
—When. 

The  Supreme  Court  of  Ohio  in  construing  the  foregoing 
statute  (§  2854)  has  held  that  real  estate  sold  at  judicial  sale. 
or  by  administrators,  executors,  guardians  or  trustees,  on  or 

sn'1      Code,      5  5600      (R.      P.  v.  Lindsay.  47  <>.  S.  437;   Morelein, 

854  I.     See  also  Callihan  v.  Hose.  etc.,  v.  WeBtmeier,  4  C.  C.  296;  Cin- 

2    W.    L.     II.    281  :     Sprihgmeier    v.  cinnati  v.  Lingo,  et  ah,  13  C.  C.  337. 
Blackwell,  :i   W.   L.  B.    1160;    Clark 


531  TAX    LIEN    FORECLOSURE.  §  411 

after  the  first  day  of  October,  against  which  taxes  stand  legal- 
ly charged  upon  the  tax  duplicate,  sjich  taxes  together  with 
any  penalty  and  interest  thereon  at  the  time  of  such  sale, 
may,  under  this  statute,  be  ordered  discharged  out  of  the 
proceeds  of  such  sale;  and  for  th*j  purpose  of  being  so  dis- 
charged, the  taxes  charged  against  the  land  become  due  and 
payable  within  the  meaning  of  the  last  clause  of  (ien'l  ('ode 
§5690  (R,  S.  §2854),  on  the  first  day  of  October,  annually, 
that  being  the  date  on  which  the  duplicate  of  taxes  is  required 
by  law  to  be  placed  in  the  possession  of  the  county  treasure!-, 
and  this  clause  of  the  statute  is  not  affected  by  the  other 
statutory  provision  that  the  lien  of  the  State  for  taxes  shall 
attach  on  the  day  preceding  the  second  Monday  of  April 
annually.14 

Sec.  411.     The  rule  as  to  payment  of  assessments   out  of  pro- 
ceeds of  a  judicial  sale  of  real  estate. 

Assessments  for  municipal  improvements  are  generally  made 
payable  in  yearly  installments.  Such  installments  that  are 
certified  to  the  county  auditor  and  are  due  and  payable  within 
the  year  next  after  the  last  day  of  September  in  any  year, 
should  be  placed  upon  the  duplicate  of  the  county  for  such 
year  and  collected  as  other  taxes.  Installments  which  are 
properly  entered  upon  the  annual  county  duplicate,  should 
be  collected  the  same  as  other  taxes,  and  in  case  of  a  judicial 
sale  of  real  estate,  or  sales  by  administrators,  executors, 
guardians  or  trustees,  made  after  the  last  day  of  September 
in  any  year,  such  installments  as  stand  unsatisfied  upon  such 
duplicate  should  be  paid  out  of  the  proceeds  of  such  sale,  as  pro- 
vided as  to  other  taxes  in  Gen'l  Code,  §5690  (R.  S.  §2854). 
Installments  not  due  and  payble  within  the  year  next  after  the 
last  day  of  September,  remain  a  lien  upon  the  real  estate  in  the 
hands  of  the  purchaser  at  such  judicial  sale  or  sales  by  adminis- 
trators, executors,  guardians  or  trustees,  and  such  purchaser 
takes  such  real  estate  burdened  with  the  lien  of  such  unmatured 
assessments  and  he  has  no  right  to  have  the  same  paid  out  of 
the  proceeds  of  such  sale.  Neither  has  such  municipality 
such  right.15 

nHoglan  v.  Cohen,  3(1  O.  P.  430:  "Makley   v.   Whitmore,  01    O.  P. 

see  also  Ketcham  v.  Fitch,  13  O.  S.       587. 
201;  Creps  v.  Baird,  3  O.  S.  277. 


§  412  MERWINE   ON   REAL   ACTIONS.  532 

Sec.  412.     Delinquent    land    list — Cuyahoga    and    Hamilton 
Counties — How  published. 

Each  county  auditor  must  cause  the  list  of  delinquent  land 
in  his  county  to  be  published  weekly  for  two  weeks  between 
the  20th  day  of  December  and  the  3rd  Tuesday  in  January 
next  ensuing,  except  in  counties  containing  a  city  of  the  first 
or  second  grade  of  the  first  class,  in  which  such  list  is  to 
be  published  between  the  twentieth  day  of  December  and  the 
first  Monday  in  February,  in  one  newspaper  in  the  English 
language,  and  no  more,  printed  and  of  general  circulation  in 
his  county,  and  also  in  one  newspaper  of  the  German  language, 
if  there  be  printed  and  published  a  newspaper  in  the  German 
language,  and  of  general  circulation  therein,  and  if  no  paper 
be  printed  therein,  then  in  some  paper  in  the  English  language, 
having  general  circulation  in  his  county,  to  which  list  there 
must  be  attached  a  notice  that  said  delinquent  lands  will  be 
sold  by  the  county  treasurer,  as  provided  in  Gen'l  Code,  §  5J11 
(R.  S.  §2870),  which  said  notice  shall  be  in  substance  as 
follows,  that  is  to  say: 

DELINQUENT  TAX  SALE. 

The  lands,  lots  and  parts   of  lots   returned  delinquent  by 

the   treasurer   of  County,   together  with   the   taxes 

and  penalty  charged  thereon  agreeably  to  law,  are  contained 
and  described  in  the  following  list,  viz. :  (Here  insert  the  list 
with  the  name  or  names  of  the  owner  or  owners  of  the  said 
respective  tracts  of  land,  or  town  lots,  as  the  same  are  de- 
signated on  the  duplicate),  and  notice  is  hereby  given  that 
the  whole  of  said  several  tracts,  lots  or  parts  of  lots,  or  so 
much  thereof  as  may  be  necessary  to  pay  the  taxes  and  penalty 
charged  thereon,  will  be  sold  by  the  county  treasurer  at  the 
court  house  in  said  county  on  the  third  Tuesday  of  January, 

,  unless  said  taxes  and  penalty  be  paid  before  that  time, 

and  that  the  sale  will  be  continued  from  day  to  day,  until 
the  several  tracts,  lots  and  parts  of  lots,  shall  have  been  sold 
or  offered  for  sale.10 

ie  Gen'l  Code,  §  5704  (K.  S.  S.  §2870.  Mathers  v.  Bull,  19  C. 
§  2864).  This  does  not  change  re-  C.  657;  Mathers  v.  Lewis,  18  C.  C. 
quirements  of  Gen'l  Code,  §  5711  (R.       134. 


533  TAX   LIEN    FORECLOSURE.  §§  413-416 

Sec.  413.     A  failure  to  comply  with  the  requirement  of  the 
statute  as  to  advertisement  defeats  title  of  purchaser. 
The  courts  of  this  State  have  steadfastly  held  that  a  failure 
to  comply  with  the  terms  of  this  statute  will  invalidate  the 
title  to  a  purchaser  of  such  delinquent  lands.17 

Sec.  414.     Auditor  to  compare  delinquent  list  with  duplicate. 

Immediately  before  advertising  such  list  of  delinquent  lands 
and  lots,  it  is  made  the  duty  of  the  county  auditor  to  compare 
the  same  with  the  duplicate  in  the  hands  of  the  county  treas- 
urer, and  strike  therefrom  all  lands  or  town  lots  upon  which 
the  taxes,  interest,  and  penalty  of  the  preceding  year,  with 
the  taxes  of  the  current  year,  shall  have  been  paid,  and  pro- 
ceed to  advertise  the  remainder  as  herein  provided.18 

Sec.  415.  Copy  to  be  inserted  at  foot  of  record  of  delinquent 
list — Certificate  as  to  their  publication. 
The  county  auditor  is  required,  on  or  before  the  day  of 
sale  mentioned  in  such  notice,  to  insert,  at  the  foot  of  the 
record,  on  delinquent  list,  a  copy  of  such  notice,  and  is  re- 
quired moreover  to  certify  on  said  record,  immediately  follow- 
ing such  notice,  the  name  of  the  paper,  and  the  length  of 
time  such  list  and  notice  were  published  therein.19 

Sec.  416.     Proceedings  when  delinquent  list  not  published. 

In  all  cases  where  any  county  auditor,  by  inadvertence 
or  mistake  has  omitted,  or  in  any  future  year  omits  to  pub- 
lish the  delinquent  list  of  his  county,  according  to  the  require- 
ments of  law,  it  is  made  his  duty,  in  case  the  taxes  and  penalty 
with  which  the  land  and  town  lots  therein  stand  charged 
shall  not  have  been  paid  before  the  tenth  day  of  August  of 
the  next  succeeding  year,  to  charge  the  said  lands  and  town 

iTKellogv.  McLaughlin,  8  0.  114;  isQen'l     Code,     §     5707      (R.     S. 

Magruder   v.   Esmay,  35  0.  S.  221;  §  2866).     As   to   purpose  of  adver- 

Winder    v.    Sterling,    7    0.    (pt.    2)  tisement,  see  Carlisle  v.  Longworth, 

190;    Hughy   v.   Horrel,    2    0.    231;  5   0.    368;    Wilkins   v.    Huse,   9    0. 

Rhodes  v.  Gunn,  35  0.  S.  395.     See  154 ;  Lafferty  v.  Byers,  5  0.  458. 

also   in   this   connection   Carlisle   v.  19  Gen'l      Code,      §  570S       (R.    S. 

Longworth,    5    0.    368;    Wilkins    v.  §   2867).      Failure   to   comply   with 

Huse,  9  O.  154;   Lafferty  v.  Byers,  the   provisions  of  this  statute  will 

5  0.  458.  invalidate    the    sale.      Magruder    v. 

Esmay,  35  0.  S.  233. 


§§  417-419  MERWINE    ON    REAL    ACTIONS.  534 

lots  with  the  said  taxes  and  penalty,  and  also  the  taxes  of 
the  current  year,  and  record,  certify,  and  publish  the  same 
as  part  of  the  delinquent  list.20 

Sec.  417.     Omitted  publication. 

In  any  county  where  the  county  auditor  heretofore  by  in- 
advertence, mistake,  or  otherwise,  shall  have  omitted  to  publish 
the  delinquent  list  of  his  county  according  to  the  requirements 
of  law,  the  publication  must  be  made  according  to  the  pro- 
visions of  Gen'l  Code  §  5709  (R.  S.  §  2868). 

Sec.  418.     Paper  containing  list  to  be  sent  to  auditor  of  State, 
and  printer's  account. 

It  is  made  the  duty  of  the  county  auditor  to  send  by  mail 
to  the  auditor  of  State  one  paper  containing  the  list  of  delin- 
quent and  forfeited  lands,  and  a  copy  of  the  account  of  the 
printer,  as  sworn  to  by  him  and  allowed  by  the  auditor.21 

Sec.    419.     Sale    of   delinquent    lands— Conditions — Cuyahoga 
county. 

The  county  treasurer  or  his  deputy  is  required  to  attend  at 
the  court  house  in  his  county,  on  the  third  Tuesday  in  January, 
in  conformity  with  the  notice  prescribed  in  Gen'l  Code,  §  5704 
(R.  S.  §  2864),  and  is  required  then  and  there  at  and  after  the 
hour  of  ten  in  the  forenoon  to  proceed  to  offer  for  sale,  separately, 
each  tract  of  land,  or  city  or  town  lot,  or  part  of  lot,  contained  in 
said  advertisement,  on  which  the  taxes  and  penalty  shall  not  have 
been  paid;  and  the  person  or  persons  offering  at  said  sale  to 
pay  the  taxes  and  penalty  charged  on  such  land,  lot  or  part 
of  lot,  for  the  least  quantity  thereof,  shall  be  the  purchaser  or 
purchasers  of  such  quantity,  and  the  treasurer  shall  continue 
such  sale  from  day  to  day  until  each  tract,  lot  or  part  of  lot 
contained  in  such  advertisement  on  which  the  taxes  and  penalty 
remain  unpaid,  shall  have  been  sold  or  offered  for  sale.  Pro- 
vided, that  in  counties  containing  a  city  of  the  first  or  second 
grade  of  the  first  class,  the  sale  of  the  lands  on  which  the  taxes 
and  penalty  shall  not  have  been  paid,  shall  begin  on  the  first 

zoOon'l  Code,      §5700  (R.      S.  statute   must   be   complied    with,   or 

§2868).  the  sale  will  be  invalid.     Rhodes  v. 

2i  Gen'l      Code,      §5710  ( R.      S.  fJunn,  35  O.  S.  395. 

§  2869).  The    provisions  of    thia 


535  TAX    LIEN    FORECLOSURE.  §§420,421 

Tuesday  after  the  first  Monday  of  February,  and  the  sale 
thereof  shall  continue  from  day  to  day  until  each  tract,  lot 
or  part  of  lot  contained  in  such  advertisement  on  which  the 
taxes  and  penalty  remain  unpaid,  shall  have  been  sold  or 
offered  for  sale.22 

Sec.  420.     How  to  proceed  if  purchaser  fails  to  pay. 

The  person  or  persons  purchasing  such  tract  of  land  or  town 
lot  or  any  part  thereof  must  forthwith  pay  to  the  treasurer 
the  amount  of  taxes  and  penalty  charged  thereon;  and  on 
failure  so  to  do,  the  treasurer  is  required  immediately  to  offer 
said  land  or  town  lot  again  for  sale,  in  the  same  manner  as  if 
no  such  sale  had  been  made ;  and  the  person  so  failing  to  make 
payment /shall  forfeit  and  pay  a  penalty  of  twenty-five  per 
centum  on  the  amount  of  said  tax  and  penalty  to  be  recovered 
by  a  civil  action,  in  the  name  of  the  treasurer,  for  the  use  of 
the  county,  before  any  justice  of  the  peace  or  court  having 
jurisdiction  thereof.23 

Sec.  421.  County  auditor  or  deputy  to  attend  sales  of  delin- 
quent lands — To  forward  copy  of  record  of  sales  to  auditor 
of  State. 

The  county  auditor,  or  his  deputy  must  attend  all  such  sales 
of  delinquent  lands  and  lots  made  by  the  treasurer  of  his 
county,  and  is  required  to  make  a  record  thereof  in  a  substan- 
tial book,  therein  describing  the  several  tracts  of  land  and  lots 
sold  at  said  sale,  as  the  same  shall  have  been  described  in  the 
advertisement  aforesaid,  and  stating  how  much  of  each  tract 
of  land  or  lot  was  sold,  and  to  whom  sold ;  and  if  any  tract  or 
lot  remain  unsold  for  want  of  bidders,  he  must  so  enter  it  in 
a  substantial  book  kept  for  that  purpose  in  the  county  auditor's 
office,  to  be  designated  the  forfeited  land  record  of  said  county ; 
and  the  auditor  must  make  out  and  certify  a  copy  of  all  lands 
forfeited  at  each  annual  delinquent  tax  sale,  and  forward  the 
same  to  the  auditor  of  State  each  year  at  the  time  of  making 
the  settlement  with  the  county  treasurer,  next  after  such 
sale.24 

22Gen'l  Code,     §  5711      (R.     S.       §>  2872).      Failure   to    comply   with 

§  2870).  the  requirements  of  this  statute  will 

23  Oen'l  Code,      §   5712      (R.     S.       invalidate  a  sale.     Majjruder  v.  Es- 

§2871).  may,  35  0.   S.  204.     As   to  verifica- 

2*Gen'l  Code,      §5713      (R.      S.       tion  of  delinquent  list;  see  Ward  v. 


§  §  422-424  MERWINE   ON    REAL   ACTIONS.  536 

Sec.  422.  Certificate  of  purchase  of  delinquent  lands — Duty 
of  county  surveyor  under  such  certificate. 
The  auditor  must  make  out  and  deliver  to  the  purchaser  of 
any  lands  or  lots  sold  for  delinquent  taxes  as  aforesaid,  a 
certificate  of  purchase,  therein  describing  the  land  or  lots  so 
sold  as  the  same  was  described  in  the  tax  duplicate,  and  stating 
therein  the  amount  of  taxes  and  penalty  for  which  the  same 
was  sold ;  and  if  only  a  part  of  a  tract  be  sold,  such  certificate 
shall  specify  the  quantity  sold,  and  shall  be  directed  to  the 
county  surveyor,  whose  duty  it  shall  be,  when  requested  by  the 
purchaser,  his  assignee,  or  heirs,  to  lay  off  by  metes  and 
bounds,  in  a  square,  as  near  as  practicable,  at  the  most  north- 
westerly corner  of  the  tract  from  which  the  sale  was  made, 
the  quantity  so  sold ;  and  if  the  sale  be  made  from  an  inlot  or 
outlot  in  any  town,  or  from  any  particular  part  thereof,  it 
shall  be  the  duty  of  the  county  surveyor  so  to  lay  off  the  part 
or  portion  sold,  that  it  shall  include  the  most  northwesterly 
corner,  and  where  there  is  not  a  most  northwesterly  corner, 
then  the  most  northerly  corner  shall  take  precedence  as  the 
point  where  the  description  shall  begin,  and  it  shall  extend 
from  the  main  or  principal  street,  road,  or  alley  which  may 
be  the  most  convenient  front  to  such  lot,  to  the  rear  of  the 
lot,  and  to  bound  the  same  by  lines  as  nearly  parallel  with 
the  outlines  of  such  lot  as  practicable.25 

Sec.  423.     When  survey  and  deeds  shall  be  made. 

Xo  deed  can  be  made  by  the  county  auditor  for  any  land  or 
lot  sold  as  aforesaid  for  taxes,  until  the  expiration  of  two 
years  from  and  after  such  sale;  nor  can  the  survey  thereof, 
required  by  the  certificate  of  purchase,  be  made  until  the 
expiration  of  that  time.26 

Sec.  424.     Certificates  assignable. 

Said  certificates  of  purchase  are  assignable  in  law,  and  an 
assignment  thereof  will  vest  in  the  assignee  or  his  legal  repre- 
sentatives all  the  right  and  title  of  the  original  purchaser.27 

Barrows,   2   0.   S.   241;   Harmon   v.  26  On'l     Code,     §  5717      (E.     S. 

Stockwell,    9    0.    93;       Hollester   v.  §  2874). 

Bennett,  9  O.  83 ;  Skinner  v.  Brown,  ^  Gen'l     Code,     §5718     (K.     S. 

17  ii.  s.  33.  §  2875). 

ZBGenl     Code,     §  5715      (R.     S. 
§  2873). 


537  TAX    LIEN    FORECLOSURE.  §§425,426 

Sec.  425.     When  auditor  to  make  deeds — When  two  or  more 
tracts  are  sold  to  one  purchaser,  auditor  to  make  one  deed. 

At  any  time  after  the  lapse  of  two  years  from  the  time  of 
such  sale  for  taxes,  if  the  land  or  lot  so  sold  shall  not  have 
been  redeemed,  the  county  auditor  or  any  of  his  successors  in 
office  must,  on  request,  and  on  production  of  the  certificate  of 
purchase,  and  in  case  of  the  sale  of  part  only  of  a  tract  of  laud 
or  lot,  on  production  of  the  county  surveyor's  return  of  a  sur- 
vey, in  case  he  shall  deem  such  a  survey  necessary,  in  con- 
formity with  the  requisitions  of  such  certificate,  execute  and 
deliver  to  the  purchaser,  his  heirs,  or  assignees,  as  the  case 
may  be,  a  deed  of  conveyance  for  the  tract  of  land  or  town  lot, 
or  such  part  thereof  as  shall  have  been  sold  as  aforesaid ;  pro- 
vided, that  when  two  or  more  parcels  of  the  same  tract  or  lot 
of  land  have  been  or  shall  hereafter  be  sold  for  the  non-pay- 
ment of  taxes,  to  the  same  purchaser  or  purchasers,  it  shall 
be  the  duty  of  the  county  auditor,  on  production  of  the  cer- 
tificates of  the  purchaser,  or  on  production  of  the  county 
surveyor's  return  of  surveys  thereof,  in  conformity  with  said 
certificates,  when  such  surveys  are  required,  to  execute  and 
deliver  one  deed  of  conveyance  of  the  several  parcels  so  sold,  to 
the  purchaser  or  purchasers,  his  or  their  heirs  or  assignees, 
which  deed  so  executed  or  delivered  shall  vest  in  the  grantee 
or  grantees,  his,  her  or  their  heirs  or  assigns  the  same  title, 
both  in  law  and  equity,  as  if  the  several  deeds  for  each  and 
every  parcel  so  sold  were  or  had  been  executed.28 

Sec.  426.     Title  by  deed  and  its  effect  as  evidence. 

The  deed  so  made  by  the  auditor  vests  in  the  grantee,  his  or 
their  heirs  and  assigns  a  good  and  valid  title,  both  in  law  and 
equity,  and  will  be  received  in  all  courts  as  prima  facie  evi- 
dence of  a  good  and  valid  title  in  such  grantee,  his  heirs  and 
assigns.29 

But  it  must  be  first  proven  that  the  deed  is  so  made  by  the 
auditor  before  it  shall  be  deemed  prima  facie  evidence  of  a 
valid  title.  In  other  words,  our  courts  have  held  that  before 
a  deed  will  be  so  considered,  it  must  first  appear  in  evidence 

ssGen'l     Code.     §  5719      (R.     S.  ^  Gen'l     Code,     §  5721      (R.     S. 

§  2876).     See  No.  359  for  form  for       §  2877). 
auditor's  deed. 


§§427,428 


MEKWINE    ON    REAL    ACTIONS. 


538 


that  all   of   the  steps  required  by  law  leading   up   to,  and   at 
the  sale  have  been  strictly  complied  with.30 

Sec.  427.     Sale  for  tax  cuts  out  previous  liens  and  bars  dower. 

It  has  been  held  that  all  of  the  proceedings  under  the 
statute  for  the  sale  of  lands  for  the  non-payment  of  taxes,  are 
in  rem  and  not  in  personam ;  that  they  operate,  if  at  all,  upon 
the  land  itself,  and  not  merely  upon  the  title  of  the  person  in 
whose  name  it  may  have  been  listed  for  taxation;  that  a  valid 
tax  title  extinguishes  all  previous  titles,  legal  or  equitable, 
inchoate  or  perfect,  and  the  purchaser  takes  the  premises  dis- 
charged from  all  previous  liens  and  incumbrances  whatever, 
and  that  a  valid  sale  and  conveyance  of  lands,  for  the  non- 
payment of  taxes,  will  bar  even  the  favored  right  of  dower.31 

Sec.  428.     In  what  case  survey  of  land  sold  for  taxes  dispensed 
with. 

In  all  cases  where  the  whole  of  any  tract  of  land  has  been 
heretofore  or  may  hereafter  be  sold  for  non-payment  of  taxes, 
in  different  parcels  to  different  purchasers,  and  the  certificates 
of  the  sale  of  which  said  several  parcels  comprising  the  whole 
of  said  tract  of  land  shall  or  may  come  into  the  possession  of 
any  one  of  said  purchasers  or  their  assignee  by  assignment,  it 
shall  be  lawful  for  the  county  auditor  of  the  proper  county  to 
dispense  with  the  survey  of  said  separate  or  different  parcels, 
and  to  make,  execute,  and  deliver  one  deed  of  conveyance  for 
the  whole  of  said  tract  to  the  assignee  or  purchaser  so  having 
the  said  certificates  in  his  possession  by  assignment;  which  deed 
so  executed  and  delivered  shall  vest  in  the  grantee,  his  or  her 


so  Carlisle  v.  Longwortli,  5  0. 
368;  Jones  v.  Devor,  8  0.  S.  430; 
Rhodes  v.  Gunn.  35  O.  S.  387;  Ma- 
gruder  v.  Esmay,  35  0.  S.  234:  Steel 
v.  Pogue,  15  C.  C.  149;  Skinner  v. 
Brown,  17  0.  S.  33;  Cottoge,  etc. 
v.  Bacon.  2  N.  P.  205;  but  see 
Turney  v.  Yeoman,  14  O.  208: 
Stanberry  v.  Sillon,  13  O.  S.  571; 
Douglas  v.  Dangerfteld,  14  0.  522: 
Fitzpatrick  v.  Foresythe,  7  A.  L. 
R.  411:  Stnnbery  v.  Carlisle,  35 
O.  S.  214.  Tbe  recital  in  a  tax  deed 
is  not,  in  general,  proof  of  itself 
of  the  facts   recited.     Thompson  v. 


Gotham,  9  O.  170.  Nor  will  the 
recital  and  description  in  the  deed 
cure  defect  in  description  as  listed, 
Turney  v.  Yeoman,  16  0.  24.  Chan- 
cery cannot  aid  to  cure  defective  de- 
scription. Gwynne  v.  Neiswander, 
20  0.  552.  One  in  possession  and 
in  whose  name  land  is  listed  as 
owner,  can  claim  no  additional  title 
by  allowing  the  same  to  go  to  sale 
and  purchasing  the  same  and  taking 
a  deed  therefor.  Jones  v.  Devore, 
8  O.  S.  430. 

si  Jones   v.  Devore,   8    O.   S.    430; 
Gwynne  v.  Nieswanger,  20  0.  556. 


539 


TAX    LIEN    FORECLOSURE.  §§  429,  430 


heirs  or  assigns,  the  same  title,  both  in  law  and  equity,  as  if 
separate  deeds  for  each  and  every  pareel  of  such  tract  so  sold 
were  or  had  been  made  after  and  upon  the  proper  surveys 
heretofore  required  to  be  made  in  conformity  with  the  laws 
then  in  force  upon  the  subject.32 

Sec.  429.  Purchaser  of  the  interest  of  joint  tenant,  etc.,  to 
hold  in  common. 
The  purchaser,  at  a  sale  of  lands  or  lots  for  taxes,  of  the 
interest  of  any  joint  tenant,  tenant  in  common,  or  co-parcener, 
or  of  any  part  or  portion  of  such  interest,  shall,  on  obtaining 
the  deed  from  the  auditor  for  the  part  or  portion  so  by  him 
purchased,  hold  the  same  as  tenant  in  common  with  the  other 
proprietor  or  proprietors  of  such  land  or  lot,  and  be  entitled 
to  all  the  privileges  of  a  tenant  in  common  until  legal  parti- 
tion of  such  land  or  lot  shall  be  made.33 

Sec.  430.     Title  acquired  at  tax  sale  invalid,  when. 

By  the  statutes  of  Ohio,  a  title  acquired  by  purchase  at  a 
sale  of  lands  for  delinquent  taxes  is  as  good  and  indefeasible 
as  any  other  title,  if  every  step  leading  up  to  the  sale,  required 
by  statute,  has  been  taken.  In  case  there  has  not  been  a  strict 
compliance  with  each  provision  of  the  statute,  then  the  party 
whose  lands  were  sold  for  the  payment  of  the  taxes  can  recover 
the  same,  on  payment  to  the  purchaser  of  such  lands  the 
amount  he  has  paid  together  with  interest  thereon. 

Indeed,  our  courts  have  been  so  astute  to  find  defects  at  tax 
sales  that  it  has  become  a  matter  of  general  opinion  among  the 
lawyers  of  this  State  that  no  tax  title  can  be  supported.34 

Any  one  who  asserts  title  to  real  estate  by  an  auditor's 
deed  at  delinquent  tax  sale  has  the  burden  of  showing  the 
regularity  and  legality  of  the  proceedings  on  which  it  is  based, 
in  every  minute  detail,  from  the  valuation  of  the  property  for 
taxation,  to  and  including  the  sale ;  and  the  least  irregularity 
or  defect  in  any  of  the  steps  required  to  be  taken  is  fatal,  and 
renders  the  deed  unavailable  to  cast  title.35 

32Gon'l      Code       §5722       ( R.      S.  34  McMillen  v.  Robbins,  5  O.  28. 

e  9^78  \  35  Cook  v.  Prosser,   14  C.  C.  137. 

3*    fien'1     Code,     §   5723      (R.     S. 
§  2879). 


§§431,432  MERWINE    ON    REAL   ACTIONS. 


540 


Sec.  431.  In  tax  sale  of  delinquent  lands — The  statutes  author- 
izing  the  sale  to  be   strictly  construed. 

In  every  case  where  there  is  a  reliance  on  a  legal  title  ac- 
quired by  a  purchase  of  land  at  a  delinquent  tax  sale,  every 
step  of  the  statutes  under  which  such  sale  has  been  made, 
must  be  strictly  complied  with.  It  has  always  been  the  policy 
of  the  law  in  this  State  to  require  of  such  purchaser,  when  he 
seeks  to  establish  title  to  real  estate  so  acquired,  to  show  by 
record  evidence  a  strict  compliance  with  every  step  required 
by  the  law  authorizing  a  sale.36 

And  it  may  be  shown  dehors  the  record  that  the  statute  has 
not  been  complied  with.37 

Sec.  432.  Lien  of  tax  purchaser  for  purchase  money,  etc.,  if 
sale  invalid. 

Upon  the  sale  of  any  land  or  town  lot  for  delinquent  taxes, 
the  lien  which  the  State  had  thereon  for  taxes  then  due  is 
transferred  to  the  purchaser  at  such  sale;  and  if  such  sale 
proves  to  be  invalid  on  account  of  any  irregularity  in  the  pro- 
ceedings of  any  officer  having  any  duty  to  perform  in  relation 
thereto,  the  purchaser  at  such  sale  is  entitled  to  receive  from 
the  proprietor  of  such  land  or  lot  the  amount  of  taxes,  interest, 
and  penalty  legally  due  thereon  at  the  time  of  such  sale,  with 
interest  thereon  from  the  time  of  payment  thereof,  and  the 
amount  of  taxes  paid  thereon  by  the  purchaser  subsequent  to 
such  sale ;  and  such  land  or  lot  will  be  bound  for  the  payment 
thereof.38 

If  the  sale  is  invalid,  the  purchaser  can  only  recover  from 
the  owner,  or  enforce  a  lien  against  the  land,  for  the  amount 
of  the  taxes  paid,  with  interest  and  without  penalty.39 

In  a  later  case  it  was  decided  that  where  land  is  sold  for 
non-payment  of  taxes  charged  thereon  and  some  part  of  such 
taxes  is  so  charged  illegally,  such  sale  is  void,  and  that  where 

36  Chapman   v.    Rollers.   38    O.    S.  553;    Carlisle    v.    Lon<rworth,    5    0. 

37s:    Lafferty   v.    livers.   5    0.   458;  3G8;   Fitzpatrick  v.  Foresythe,  7  A. 

Kellogg   v.   McLaughlin.   8    O.    114;  L.  R.  411. 

Stanberry      v.      Nelson,      W.      766;  38  Gen'l     Code,      §  5724      (R.     S. 

Treon    v."  Emeriek,  6   0.  391;    Ren-  §  2880). 

nick    v.    Wallace,    8    <  >.    539.  39  Johnson    v.    Stewart,    29    0.   S. 

■■-   Kellogg    v.    McLaughlin,    8    O.  498;    but   see   Chapman   v.    Rollars, 

114.     See  also  Ward  v.  Barrows,  2  38  0.  S.  378  where  a  sale  was  made 

<  1.  <.  246;    MeGruder  v.  Esmay,  35  under  two-mile  assessment  tax. 
0.  S.  221;   Reed  v.  Harlan,  2  0.  D. 


541 


TAX   LlEN    FORECLOSURE. 


§§  433-435 


a  tax  sale  proves  to  be  invalid,  the  'purchaser  is  entitled  to 
receive  the  legal  taxes,  including  interest  and  penalty  legally 
thereon  paid  by  him,  and  legal  taxes  subsequently  paid  by  him, 
with  interest  from  the  dates  of  such,  payments,  but  he  is  not 
entitled  to  recover  illegal  taxes  thereon  paid  by  him,  or  interest 
or  penalty  thereon.40 

Sec.  433.     Sale  not  invalid  if  tract  charged  in  wrong  name. 

No  sale  of  any  land  or  town  lot  for  delinquent  taxes  will 
be  considered  invalid  on  account  of  its  having  been  charged 
on  the  duplicate  in  any  other  name  than  that  of  the  rightful 
owner;  provided,  that  such  land  or  lot  be  in  other  respects 
sufficiently  described  on  the  duplicate  and  the  taxes  for  which 
the  same  is  sold  be  due  and  unpaid  at  the  time  of  such  sale.41 

Sec.  434.     The  real  estate  must  be  described  so  as  to  sufficiently 
identify  the  property. 

Lands  advertised  to  be  sold  at  delinquent  tax  sale  must  be 
described  with  such  degree  of  accuracy  as  that  not  only  the 
owner  will  be  apprised  that  his  property  is  delinquent,  but 
that  bidders  at  the  sale  will  understand  from  the  description 
just  what  property  is  intended  to  be  sold.  Any  violation  of 
this  rule  will  invalidate  the  sale.42 

Sec.  435.     Auditor  may  make  deeds  of  lands  heretofore  sold. 

When  by  the  provisions  of  any  former  law  the  collector  of 
taxes  or  the  county  treasurer  was  authorized  to  make  deeds 
for  lands  or  lots  by  them  sold  for  delinquent  taxes,  and  the 
same  has  not  been  done,  the  county  auditor  of  the  proper 
county  is  authorized  to  make  such  deeds  to  all  persons  entitled 
thereto ;  and  the  deeds  so  made  by  the  auditor  shall  be  as  good 


40  Younglove  v.  Hackman,  43  0. 
S.  (SO.  A  sale  void  for  irregularity 
entitles  the  purchaser  to  recover  his 
payments  with  interest  but  no  fees 
for  transfers  nor  costs  or  penalties. 
Steel  v.  Pogue,  15  C.  C.   14!). 

4i  Gen'l  Code,  §  5725  (R.  S. 
§  2881). 

4-'  Humphries  v.  Huffman,  33  0. 
S.  395;   Turney  v.  Yeomans,  16  O. 


24;  Stewart  v.  Aten,  5  0.  S.  257; 
Hannel  v.  Smith,  15  0.  134;  Gar- 
retson  v.  Hart,  C  W.  L.  J.  315: 
Perkins  v.  Dibble,  1  0.  433:  Dong- 
lass  v.  Dangerfield.  10  0.  152:  Bur- 
chard  v.  Hubbard.  11  O.  310;  Treon 
v.  Emerick,  6  0.  301;  Lafferty  v. 
Byers.  5  0.  458;  Massie  v.  Long, 
2'0.  287;  Waltz  v.  Hurtz,  24  W. 
L.  B.  110. 


§§  436-438  MERWINE    ON    REAL    ACTIONS.  542 

and  valid  in  law  as  if  made  by  the  person  authorized  under 
such  former  law  to  make  them.43 

Sec.  436.  When  certificates  have  been  lost  or  destroyed,  how 
deeds  made. 
In  case  any  certificate  or  certificates  have  been  at  any  time 
issued  to  any  purchaser  or  purchasers  of  land  for  taxes,  under 
any  of  the  acts  heretofore  passed  on  that  subject,  which  certifi- 
cate or  certificates  having  been  mislaid,  destroyed,  or  lost,  and 
that  fact  being  shown  to  the  county  auditor,  and  no  deed  or 
deeds  having  been  executed  therefor,  said  auditor,  being  fully 
satisfied  from  evidence  of  the  existence  and  loss  of  any  such 
certificate  or  certificates,  shall,  on  application  for  that  purpose, 
proceed  to  make  and  execute  to  such  purchaser  or  purchasers 
a  good  and  sufficient  deed  or  deeds  of  conveyance  for  any  &uch 
tract  or  tracts  of  land,  which  deed  or  deeds  shall  be  as  good 
and  valid  in  law,  to  all  intents  and  purposes,  as  if  such  cer- 
tificate or  certificates  had  not  been  mislaid,  lost  or  destroyed.44 

Sec.  437.    How  auditor  to  keep  minutes  of  deeds  made. 

The  county  auditor  must  enter,  in  a  book  to  be  kept  in  his 
office,  a  minute  of  all  deeds  by  him  made  for  lands  and  town 
lots,  or  parts  thereof,  sold  for  taxes,  therein  naming  the  person 
who  stood  charged  with  the  taxes  at  the; time  of  such  sale,  and 
the  date  of  the  sale,  the  name  of  the  purchaser,  a  brief  descrip- 
tion of  the  land  or  lot  so  sold,  the  quantity  sold,  the  amount 
for  which  the  same  was  sold,  the  name  of  the  grantee  in  the 
deed,  and  the  date  of  its  execution.45 

Sec.  438.     And  to  note  redemption  of  lands. 

When  any  tract  or  portion  of  land,  town  lot  or  part  thereof, 
is  sold  for  taxes,  and  afterward  redeemed,  it  is  made  the 
duty  of  the  county  auditor  to  insert  a  minute  of  such  redemp- 
tion, the  date  thereof,  and  by  whom  made,  on  his  record  of 
sales  of  land  for  delinquent  taxes,  and  sign  the  same  offi- 
cially.46 

♦sGen'l  Code,      §  572H      (R.     S.  <r,  On'l     Code,     §   5727      (R.     S. 

§  2882).  §  2884). 

•"(;,.,fl  Code,     §  572(1      (R.     S.  "Gen'l     Code,     §5728      (R.     S. 

§  2883).  §  2885). 


543  TAX    LIEN    FORECLOSURE.  §§  439-442 

Sec.  439.  Sale  of  land  for  taxes  regularly  paid,  void — Pro- 
ceedings in  such  case. 
If  the  taxes  charged  on  any  land  or  lot  be  regularly  paid, 
and  such  land  erroneously  returned  delinquent,  and  sold 
for  taxes,  the  sale  thereof  is  void;  and  the  money  paid  by  the 
purchaser  at  such  void  sale  is  required  to  be  refunded  to  him 
out  of  the  county  treasury,  on  the  order  of  the  county  auditor, 
and  that  so  much  of  said  tax  as  has  been  paid  into  the  State 
treasury  must  be  refunded  to  the  county  treasury ;  and  the 
county  auditor  is  required  to  retain  the  same  in  his  next 
semi-annual  settlement,  and  charge  the  State  treasury  there- 
with in  said  settlement.47 

Sec.  440.  When  auditor  may  make  deeds  for  lands  in  other 
counties. 
The  county  auditor  of  the  county  in  which  any  land  or 
town  lot  shall  have  been  or  may  hereafter  be  sold  for  taxes 
under  the  provisions  of  this  act,  is  hereby  authorized  and  re- 
quired to  execute  the  proper  deed  therefor  to  the  person  or 
persons  entitled  to  receive  the  same,  whether  the  said  land 
or  town  lot  shall,  at  the  time  of  the  execution  of  said  deed, 
continue  to  be  within  said  county  or  not,  in  the  same  manner 
as  though  the  said  land  or  town  lot  still  remained  within  the 
limits  thereof,  any  law  to  the  contrary  notwithstanding.48 

Sec.  441.     Auditor  to  transfer  land  sold  for  taxes. 

Every  county  auditor  hereafter  delivering  any  certificate  of 
purchase  of  forfeited  lands,  or  delinquent  lands  sold  for  taxes, 
must  immediately,  on  his  duplicate,  transfer  the  same  into  the  . 
name  of  the  purchaser,  charging  therefor  the  sum  of  ten  cents,  . 
which  shall  be  considered  part  of  the  expenses  of  the  sale ;  and 
if  any  county  auditor  shall  neglect  to«make  such  transfer,  he 
shall  be  liable  to  action  by  any  person  injured  thereby  as  for 
a  neglect  of  official  duty.40 

Sec.  442.     Applications  for  redemption  to  be  made  to  auditor. 

All  applications  for  the  redemption  of  lands  or  town  lots 
sold  for  taxes  must  be  made  to  the  county  auditor  of  the 
county  in  which  such  lands  or  town  lots  are  situated.."'" 

«  Gen'l  Code,      §  5729      <  R.     S.  *s>  Gen'l  Cede.     §   57:M       (R.  S. 

§  2886).  §   2888). 

«8  Gen'l  Code,     §  5730      (R.     S.  so  Gen'l  Code,     §  5732        (It.  S. 

§  2887).  §  2889).  No  relief  by  suit  will  be 


§§443,444  MERWINE   ON    REAL    ACTIONS.  544 

Sec.  443.     Redemption  of  delinquent  lands — Limitation. 

All  lands  and  town  lots  sold  for  taxes  at  delinquent  sale, 
may  be  redeemed  at  any  time  within  two  years  after  the  sale 
thereof;  but  any  land  sold  for  taxes,  belonging  to  any  person 
within  the  age  of  minority,  of  unsound  mind,  or  imprisoned, 
may  be  redeemed  at  any  time  within  two  years  after  such 
disability  is  removed.51 

Sec.  444.     How  lands  may  be  redeemed. 

Any  person  desiring  to  redeem  any  land  or  town  lot  sold 
at  delinquent  tax  sale  under  or  by  virtue  of  any  law  of  this 
State,  within  ,one  year  after  the  sale  thereof,  or  within  one 
year  after  the  expiration  of  any  of  the  disabilities  named  in  Gen'l 
Code,  §  5733  (R.  S.  §  2890),  may  deposit  with  the  county  treas- 
urer, upon  the  certificate  of  the  county  auditor  particularly  de- 
scribing such  land  or  town  lot,  and  specifying  the  same,  an 
amount  of  money  equal  to  that  for  which  such  land  or  town  lot 
was  sold,  and  the  taxes  subsequently  paid  thereon. by  such  pur- 
chaser, or  those  claiming  under  him,  together  with  interest,  and 
fifteen  per  centum  penalty  on  the  whole  amount  paid,  including 
costs,  and  one  dollar  to  pay  the  expense  of  advertising  as  herein- 
after provided;  and  any  person  desiring  to  redeem  any  land  or 
town  lot  so  sold  for  taxes  after  the  expiration  of  one  year  from 
the  sale  thereof,  and  within  the  time  limited  by  law  for  such 
redemption,  may  deposit  with  the  county  treasurer,  upon  the 
certificate  of  the  county  auditor,  particularly  describing  such 
land  or  town  lot,  and  specifying  the  same,  an  amount  of  money 
equal  to  that  for  which  such  land  or  town  lot  was  sold,  and  the 
taxes  subsequently  paid  thereon  by  such  purchaser,  or  those 
claiming  under  him,  together  with  interest  and  twenty-five  per 
centum  penalty  on  the  whole  amount  paid,  including  costs,  and 
one  dollar  to  pay  the  expense  of  advertising,  as  hereinafter 
provided.52 

granted   any  one   whose  lands  have  1)    17;    State  ex  rel  v.  Touzey,   49 

been    sold    at    delinquent    tax    sale,  0.  S.  G5(>. 

until   he  has  first  made  application  52  Gen'l     Code,     §  5734      (R.     S. 

to   the   auditor   as    required  by  this  §  2891).      For   decisions  under   this 

statute,  Trustees  v.  Thoman,  51   0.  section   see   Plumb   v.   Robinson.    1.'? 

S.  285.  0.  S.  298;   Masterson  v.  Beasley,  3 

bi  Gen'l      Code,      §5733      (R.      S.  0.   301;    Steel    v.   Pogue,    15    C.    C. 

§   2890).       See    under    this    statute  149;    as    to    right    of    appeal    under 

Reynolds  v.  Leeper's  Heirs,  7  0.   (pt  former   laws   see    Street  v.   Francis, 


545  TAX   LIEN    FORECLOSURE.  §§  445-447 

Sec.  445.     Joint  owner,  etc.,  may  redeem  his  proportion. 

When  any  joint  tenants,  tenants  in  common,  or  co-parceners, 
shall  be  entitled  to  redeem  any  land  or  town  lot  sold  for 
taxes,  and  any  person  so  entitled,  shall  refuse  or  neglect  to 
join  in  the  application  for  the  certificate  of  redemption,  or, 
from  any  cause,  can  not  be  joined  in  such  application,  the 
auditor  may  entertain  the  application  of  any  one  of  such 
persons,  or  so  many  as  shall  join  therein,  and  may  make  a 
certificate  for  the  redemption  of  such  proportion  of  said  land 
or  lot  as  the  person  or  persons  making  such  application  shall 
be  entitled  to  redeem.53 

Sec.  446.     Proceedings  of  party,  treasurer   and  auditor  on  ap- 
plication to  redeem. 

Upon  the  presentation  of  any  such  certificate  of  the  county 
auditor  to  the  county  treasurer,  for  the  redemption  of  any 
land  or  town  lot  sold  for  taxes,  and  upon  the  payment  of  the 
money  into  the  county  treasury,  as  aforesaid,  the  county  treas- 
urer shall  give  the  person  or  persons  making  such  payment, 
duplicate  receipts  therefor,  describing  the  property  or  the  land 
or  town  lot  as  the  same  is  described  in  or  upon  the  certificate 
of  the  auditor,  as  aforesaid ;  one  of  which  receipts  shall  be 
registered  by  the  treasurer,  and  immediately  filed  with  the 
county  auditor,  by  the  person  or  persons  or  party  receiving 
the  same ;  and  thereupon  the  auditor  shall  forthwith  cancel 
the  sale,  and  transfer  the  property,  land  or  town  lot  to  the 
proper  person  or  persons  or  party;  and  such  receipt,  when  so 
filed,  shall  operate  as  an  extinguishment  of  all  rights,  either 
in  law  or  equity,  conferred  in  any  way  or  manner  by  such 
sale;  and  the  auditor  shall  publish  a  notice  of  such  redemption 
in  the  same  newspaper  in  which  the  advertisement  of  sale  had 
been  published,  for  the  term  of  three  weeks,  either  in  a  weekly 
or  a  daily  paper,  once  in  each  week,  at  an  expense  not  ex- 
ceeding one  dollar.54 

Sec.  447.     Payment  of  redemption  money  to  tax  purchaser,  etc. 
Upon  the  demand  of  the  purchaser,  or  his  legal  representa- 
tive, and  the  surrender  of  the  tax   certificate,  and  upon  the 

3    0.   277;    Rawson   v.   Boughton,   5  54  Gen'l    Code,      §  5737       (R.      S. 

0.   328.  §   2893). 

53  Gen'l     Code,     §  5736      (R.     S. 
§  2892). 


§§  448,  449  MERWINE   ON    REAL   ACTIONS.  546 

payment  of  the  auditor's  fees,  the  county  auditor  shall  draw 
his  warrant  upon  the  county  treasurer  in  favor  of  such  pur- 
chaser or  his  legal  representative  for  the  amount  of  money 
so  deposited  as  hereinbefore  mentioned,  with  the  said  treas- 
urer, after  deducting  therefrom  the  treasurer's  fees  for  such 
services.55 

Sec.  448.  When  auditor  to  note  on  back  of  certificate  that 
deposit  has  not  been  made — Note  of  redemption  on  record 
of  tax  sales. 

In  all  cases  where  such  deposit  shall  not  be  made  within 
two  years  from  the  time  of  the  sale  of  lands  or  lots  sold  for 
delinquent  taxes,  or  within  six  months  from  that  of  lots  or 
lands  forfeited  to  the  State  for  non-payment  of  taxes,  the 
auditor  shall,  at  the  request  of  the  person  presenting  such 
certificate,  note  such  fact  upon  the  back  of  said  certificate,  and 
sign  his  name  thereto.  When  any  tract  or  portion  of  land  or 
town  lot  or  part  thereof  is  thus  redeemed,  or  any  deposit  thus 
made,  it  shall  be  the  duty  of  the  auditor  of  the  county  to  note 
such  redemption  or  deposit,  the  date  thereof,  and  by  whom 
made,  on  his  record  of  tax  sales,  and  sign  his  name  officially 
thereto.''6 

Sec.  449.     Tax  purchaser's  improvements — How  paid  for,  etc. 

In  case  any  lasting  and  valuable  improvements  shall  have 
been  made  by  the  purchaser  at  a  sale  for  taxes,  or  by  any 
person  claiming  under  him,  in  any  land  or  town  lot,  for  which 
a  certificate  of  redemption  shall  be  made  as  aforesaid,  the 
premises  shall  not  be  restored  to  the  person  obtaining  such 
order,  until  he  shall  have  paid  or  tendered  to  the  adverse  party 
the  value  of  such  improvements;  and  if  the  parties  can  not 
agree  on  the  value  of  such  improvements,  the  same  proceedings 
shall  be  had  in  relation  thereto,  as  shall  be  prescribed  in  any 
law  existing  at  the  time  of  such  proceedings,  for  the  relief  of 
occupying  claimants  of  land;  provided,  that  no  purchaser  of 
any  land  or  town  lot,  sold  for  taxes,  nor  any  person  claiming 
under  him,  shall   be  entitled  to  any  compensation  for  any  im- 

BfiGen'l     Code,      $5738      (R.     8.  seGenl     Code,     §5730      (R.     S. 

§  2894  i .  §  2895 ) . 


547  TAX    MEN    FORECLOSURE.  §§450,451 

provements   which  he   shall    make   on   such  land   or  town   lot, 
within  two  years  from  and  after  the  sale  thereof.57 

Sec.  450.  Sale,  etc.,  for  taxes  of  lands  and  lots,  etc.,  under 
permanent  lease. 
Where  lands  or  lots,  liable  to  taxation,  are  held  upon  perma- 
nent lease,  and  with  improvements  thereon,  are  taxed  in  the 
name  of  the  lessee,  if  the  same  are  suffered  to  become  delin- 
quent and  are  brought  to  sale  by  the  county  auditor  for  the 
non-payment  of  the  tax.  interest,  and  penalty  due  thereon, 
such  sale  shall  be  confined  to  the  right  of  the  lessee  on  the 
premises  and  the  improvements  thereon,  if  the  same  shall  be 
sufficient  to  meet  the  tax,  interest  and  penalty  so  assessed 
and  due:  provided,  that  nothing  herein  contained  shall  be  so 
construed  as  to  require  such  lands  or  lots  to  be  differently 
described  on  the  duplicate,  or  advertised  in  any  separate  or 
distinct  form  or  in  any  other  manner  than  other  lands  and 
lots  under  the  provisions  of  existing  laws.58 

Sec.    451.     Proceedings    when    land    is    returned    delinquent 
upon  which  taxes  were  paid. 
Where  any  tract  of  land  or  town  lots  shall  be  returned  de- 
linquent  for   the   non-payment    of   taxes,    and    placed    on   the 
duplicate   of  the   succeeding  year,   and   the   owner  or   person 
liable  to  pay  taxes  therefor  shall  produce  the  receipt  of  the 
treasurer  for  such  taxes  of  the  preceding  year,  it  shall  not  be 
lawful   for  the  county  auditor  or  treasurer  to  make  any  de- 
duction  from  the  duplicate  of  such  tax,  interest,  or  penalty, 
but  the  same  shall  be  chargeable  to  the  treasurer,  as  if  such 
receipt  had  not  been   produced;  provided,  that   it  shall  be  the 
duty  of  the  treasurer  to  receive  such  receipt  in  discharge  of 
the   tax   for   the   year  that    is  returned   delinquent,   with    the 
interest    and    penalty;    and    the    auditor    of   the    county    shall 
credit    such   treasurer   with    the   amount,    and    shall   forthwith 
proceed,    by    action,    to    collect    such    tax,    interest,    or    penalty 
from  tin1  treasurer  who  gave  such  receipt;  and  it  shall  be  the 
duty  of  the  prosecuting  attorney  to  attend  any  such  suit  so 
commenced  by  the  auditor/'9 

57C:en"l     Code.      §  5741      (R.     P.  B9  Gen'l      Code,     §  5743      (R.     S. 

§  2896).  §  2898). 

GsOn'l      Code,      §   5742      (PL      S. 
§  2897). 


FORMS. 


PROCEDURE  IN  FORECLOSING  A  TAX  LIEN  ON  REAL 

ESTATE. 


Form 

Form 

344. 

The  petition. 

357. 

345. 

Order  for  publication  for  un- 

known heirs. 

358. 

340. 

The  proof  of  publication. 

347. 

The  legal  notice. 

359. 

348. 

Entry  foreclosing  lien  and  or- 

dering sale. 

300. 

349. 

The    order    of    sale    from    the 
clerk   to  the   sheriff. 

350. 

The  sheriff's  return  of  his  pro- 

ceeding under  the  order  of 

361. 

sale. 

351. 

Proof  of  publication  of  legal 
notice  of  sale. 

362. 

352. 

Legal  notice  of  sheriff's  sale  of 
real  estate. 

353. 

Appointment  of  appraisers. 

363. 

354. 

The  oath  of  the  appraisers. 

364. 

355. 

Appraisement. 

356. 

Order  of  court  confirming  sale 
and    distributing    proceeds 
of  the  sale. 

The  sheriff's  deed  in  fore- 
closure of  tax  lien. 

Tax  certificate  —  Delinquent 
tax  sale. 

Auditor's  deed — Delinquent 
sale. 

Petition  by  treasurer  of  coun- 
ty to  sell  real  estate  for 
payment  of  taxes  arid  street 
assessments. 

Order  of  sale  under  the  above 
petition. 

Form  for  an  answer  contain- 
ing general  denial,  defense 
of  corner  lot,  and  the  stat- 
ute of  limitations. 

The  reply  to  such  answer. 

Another  form  for  finding  and 
decree  of  the  court  in  the 
foreclosure  of  an  assess- 
ment lien. 


County,  Ohio. 


No. 


No.  344.     The  petition. 

Court  of  Common  Pleas,  

M.   C, 

Plaintiff, 
vs. 

The  Unknown  Heirs  of  C.  R., 
Defendants. 

The  plaintiff  says  that  on  or  about  the  22nd  day  of  A.  D. 

18 — ,  one  J.   S.  sold   for  a  valuable   consideration   and  by  deed   duly 
executed   and   acknowledged,   conveyed   to   C.    R.,   the   following   real 

estate,    situate    in    the    County    of   and    State    of    Ohio,    and 

being   lot   No.    in Subdivision,   known    as   ,   to 

the    City    of   ,    Ohio,    as    designated    and    delineated    on    the 

548 


549  FORMS. 

plat  of  said  subdivision  of  record  in  Plat  Book  No.  at  page 

in    the    recorder's    office    of    said    county.      Said    deed    of    con- 
veyance is  of  record  in  Deed  Book  — —  at  page  in  the  recorder's 

office  of  said  county.     At  the  delinquent  land  sale  on  or  about , 

18 ,    in    said    County   of   ,    said   lot   was   sold    for   non-pay- 
ment of  taxes  to  L.  W.  for  $ ,  the  amount  of  taxes  and  penalty 

on  said  lot  for  the  years  19 —  and  19 — ,  for  which  H.  J.  C,  auditor 
of  said  county  delivered  to  said  purchaser  a  proper  certificate. 

Thereafter  said  certificate  was  duly  transferred  for  a  valuable  con- 
sideration to  the  plaintiff,  M.  C,  who  is  the  owner  and  holder  there- 
of and  has  paid  the  subsequent  taxes  and  assessments  on  said  lot 
as  follows: . 

Said  tax  sale  was  invalid  and  void  for  the  reason,  among  others, 
that  in  the  return  by  the  treasurer  of  said  lot  in  the  list  of  lots 
and  lands  delinquent  for  payment  of  taxes  on  which  said  proceedings 
and  sale  were  founded  there  was  no  marginal  note  or  other  state- 
ment of  the  reason  why  said  treasurer  was  unable  to  collect  said 
taxes. 

Under  the  statute  for  such  cases  made  and  provided,  the  plaintiff 
has  a  lien  on  said  lot  for  the  aggregate  amount  so  paid  as  aforesaid 
for   said    lot   at   said    tax   sale   and    the   several    subsequent   payments 

of   taxes   and   assessments    aforesaid    amounting   to    $ ,    together 

with    the    interest    at    six    per    cent,    per    annum    of    the    amount    of 
each  of  such  payments  from  the  date  thereof. 

Since  the  aforesaid  tax  sale  the  said  C.  R.  has  deceased,  being 
at  the  time  of  her  death  a  non-resident  of  Ohio,  and  plaintiff  does 
not  know  and  has  not  been  able  by  diligent  inquiries  to  find  out 
who  are  her  heirs  at  law,  or  the  name  or  residence  of  any  such  heirs. 

By  reason  of  the  premises  the  plaintiff  prays  that  said  unknown 
heirs  of  said  C.  R.  may  be  made  parties  to  this  action  by  publication 
as  provided  by  law;  that  plaintiff's  said  lien  may  be  foreclosed  and 
said  lot  sold  and  the  proceeds  applied  to  the  payment  of  said  lien, 
and  for  all  other  and  further  relief  to  which  plaintiff  is  entitled. 


Attorneys  for  Plaintiff. 

State  of  Ohio,  County,  ss. : 

O.  H.  M.,  being  first  duly  sworn,  says  that  he  is  attorney  for 
the  plaintiff  in  this  case,  that  the  facts  stated  in  the  foregoing  peti- 
tion are  within  his  personal  knowledge,  and  are  true;  that  the  said 
C.  R.  is  dead,  and  affiant  has  made  diligent  inquiries  to  learn  the 
name  of  any  living  relative  or  heir  of  said  C.  R.  without  success, 
and  the  names  and  residence  of  her  heirs  are  unknown  to  plaintiff 
and  this  affiant. 


Sworn   to    before   me   and   subscribed    in   my    presence   by   said    O. 
H.   M.,  day   of  .   A.   D.   19 . 


Notary  Public,  County. 


MERWINE    ON    REAL    ACTIONS.  550 

No.  345.     Order  for  publication  for  unknown  heirs. 

(Same  caption   as   in   the   petition.) 

It  being  made  to  appear  to  the  court  by  affidavit  that  the  names 
and  residences  of  the  heirs  of  C.  R.,  after  diligent  inquiries  having  been 
made,  are  unknown  to  said  plaintiff,  it  is  ordered  that  notice  of  the 
pendency,  objects  and  prayer  of  the  petition  herein  be  given  to  the 
said  defendants  by  publication  weekly  for  six  successive  weeks  in 
some  newspaper  published  and  of  general  circulation  in  said  county 
of  . 

No.  346.     The  proof  of  publication. 

State  of  Ohio,  County,  ss.: 

J.    H.    B.,    foreman    of   The    ,    a    newspaper    published    and 

printed   in  ,  County,  Ohio,   personally  appeared  and 

made  oath  that  the  attached  printed  advertisement  was  published  six 

consecutive    weeks    in    said    newspaper,    from    ,    19 ;    and 

that  said  newspaper  is  of  general  circulation  in  said  county. 

J.   H.    B. 

Subscribed  and  sworn  to  this  day  of  ,  19 . 

F.  S. 
Notary  Public  in  and  for  County. 

No.  347.     The  legal  notice. 

(Same  caption  as   in   the  petition.) 

Attached  Advertisement. 

The   unknown   heirs   of  C.   R.,    deceased,   will   take  notice    that   on 

the  day  of  ,   19 ,  M.  C.  filed  his  petition  in  the 

Common     Pleas    Court,    County,    Ohio,    in    cause    No.    

against  the  unknown  heirs  of  C.  R.,  deceased,  which  case  is  now 
pending  in  said  court,  the  object  and  prayer  of  which  is  to  foreclose 
the   tax    lien    held   by    plaintiff   and    to    satisfy    the    same    to    sell    the 

following  described   premises  situate   in   the  County  of  ,  and 

State  of  ,  and  in  the  City  of  ,  and  being  lot  No. 

—  Subdivision  known  as Addition  to  the  City  of  

as  designated  and  delineated  on  the  plat  of  record  in  Plat  Book  , 

page  ,  recorder's  office  of  said  county.     Said  parties  are  required 

to  answer  on  or  before  the  day  of  ,  19 ,  or  judg- 
ment may  be  taken  against  them  as  prayed  for. 


Attorneys  for  Plaintiff. 


No.  348.     Entry  foreclosing  lien  and  ordering  sale. 

(Same  caption  as   in  the  petition.) 

Now  comes  the  plaintiff,  by  his  attorneys,  and  offers  proof  of  pub- 
lication of  the  pendency  and  prayer  of  the  petition  herein;    and  the 


551  FORMS. 

court  finding  said  publication  and  proof  in  all  respects  regular  and 
according  to  law,  do  hereby  approve  the  same. 

And  the  court  finding  that  it  has  jurisdiction  in  the  premises 
and  that  the  defendants,  the  unknown  heirs  of  C.  R.,  deceased,  are 
in  default  for  answer  or  demurrer,  it  is  ordered  that  this  cause  be 
placpd  upon  the  assignment  of  causes  for  hearing  this  day. 

Thereupon  thi?  cause  came  on  for  hearing,  and  was  heard  and 
submitted  to  the  court  upon  the  petition  and  the  evidence,  and  on 
consideration  thereof  the  court  finds  the  allegations  in  plaintiff's 
petition  to  be  true,  that  plaintiff  has  a  lien  upon  the  real  estate  de- 
scribed in  the  petition,  viz.:     On  lot  in  the  amended  subdivision 

known  as  Addition  to  the  City  of  ,  county, 

Ohio,  as  said  lot  is  designated  and  delineated  upon  the  plat  of  said 
subdivision  of  record  in  the   recorder's  office  of  said  county  in   Plat 

Book  at  page  ,  said  lien  being  for  the  taxes  paid  by  plaintiff, 

as    set   forth   in   his    petition,    and    for    the    amount   of    $ ,    with 

interest  included  up  to  the  first  day  of  this  term  of  court,  and  that 
plaintiff  is  entitled  to  have  his  said  lien  foreclosed. 

It  is  therefore  by  the  court  considered,  adjudged  and  decreed  that 
unless  the  defendants,  the  unknown  heirs  of  C.  R.,  deceased,  or  some 
one  in  their  behalf,  shall,  within  three  days  from  the  entry  of  this 
decree,    pay    to    the    said    M.    C,    or    his    attorneys,    the    said    sum    of 

$ ,  with  interest  from  the  first  day  of  this  term,  and  to  the  clerk 

of    this    court    the    costs    of    this    action    taxed    at    $ ,    said    real 

estate  shall  be  sold  as  upon  execution  and  an  order  shall  issue  there- 
for to  the  sheriff  of  County,  and  that  said  sheriff  bring  the 

proceeds  of  said  sale  into  court  for  further  order.  On  motion  and 
for  good  cause  shown,  German   publication  is  hereby   dispensed  with. 

No.  349.    The  order  of  sale  from  the  clerk  to  the  sheriff. 

The  State  of  Ohio,  County,  ss. : 

To  the  Sheriff  of  said  County,  Greeting: 

Whereas,  at  a  term  of  the  Court  of  Common  Pleas,  held  at 


in  and   for  said  county,  on  the  day  of  ,   A.   D.   one 

thousand    nine    hundred ,    in    the    cause    of    M.    C,    plaintiff, 

and  the  unknown  heirs  of  C.  R.,  defendants,  it  was  ordered,  ad- 
judged and   decreed   as   follows,   to-wit: 

That  plaintiff  has  a  lien  upon  the  real  estate  described  in  the 
petition  viz.:  (Here  insert  description  of  real  estate),  said  lien 
being  for  the  taxes  paid  by  plaintiff  as  set  forth   in  his  petition  and 

for  the  amount  of  $ —  with  interest  included  up  to  the  first  day 

of  this  term  of  court,  and  that  plaintiff  is  entitled  to  have  his  said 
lien  foreclosed. 

It  is  therefore  by  the  court  considered,  adjudged  and  decreed 
that  unless  the  defendants,  the  unknown  heirs  of  C.  R.,  deceased,  or 
some  one  in  their  behalf  shall  within  three  days  from  the  entry  of 
this  decree,  pay  to  said  M.  C,  or  his  attorney  the  said  sum  of  ? 


MERWINB    ON    REAL   ACTIONS.  552 

with    interest    from    the   first    day   of   this    term    and    to    the   clerk   of 

this  court  the  costs  of  this  action  taxed  at  $ ,  said   real   estate 

shall  be  sold  as  upon  execution  and  an  order  shall   issue   therefor  to 

the  sheriff  of County,  and  that  said  sheriff  bring  the  proceeds 

of  said  sale  into  court  for  further  order. 

German   publication   dispensed   with. 

We  Therefore  Command  You,  that  you  proceed  to  carry  said  order, 
judgment  and  decree  into  execution  agreeably  to  the  tenor  thereof, 
and  that  you  expose  to  sale  the  above  described  real  estate,  under 
the  statute  regulating  sales  on  execution,  and  that  you  apply  the 
proceeds  of  such  sale  in  satisfaction  of  said  judgment  and  decree, 
with  costs  and  interest,  as  specified  therein;  and  that  you  make  report 
of  your  proceedings  herein,  to  our  Court  of  Common  Pleas  within  sixty 
days  from  the  date  thereof,  and  bring  this  order  with  you.  And  I 
certify  under  seal  of  court  that  the  description  of  property  herein 
is  correctly  copied  from  the  records  of  this  case  on  file  in  this  office. 

Witness  my  signature  as  clerk  of  our  said  court  of  Common  Pleas, 

and  the  seal  of  said  court,  at  ,  this  day  of  , 

A.  D.  one  thousand  nine  hundred  ■ . 

J.  W.  M.,  Clerk, 
By   J.   R.,   Deputy. 

No.  350.    The  sheriff's  return  of  his  proceeding  under  the  order 
of  sale. 

The  State  of  Ohio,  County,  ss.: 

In  obedience  to  the  command  of  the  order  of  sale  hereto  annexed, 

I   did,   on   the day    of   ,   A.    D.   one    thousand    nine 

hundred  ,  summon  L.  C.  L.,  A.  P.  S.  and  J.  J.  B.,  three  dis- 
interested freeholders,  residents  of  said  county,  who  were  by  me  duly 
sworn  to  impartially  appraise  the  lands  and  tenements  therein  de- 
scribed,   upon    actual    view,    and    afterward,    on    the day    of 

,  A.  D.  one  thousand  nine  hundred  ,  said  appraisers 

returned  to  me,  under  their  hands  and  seals,  that  they  did,  upon 
actual   view   of   the   premises,   estimate   and   impartially   appraise   the 

veal  value  in  money  of  the  same  at  dollars.     A  certified  copy 

of    said    appraisal    I    forthwith    deposited    in    the    office    of    the    clerk 

of  Court  of  Common  Pleas  of  said  county.     And  on  the  day 

of  ,  A.   D.  one  thousand  nine  hundred  ,  I   caused  to 

be   advertised    in    the   (a   newspaper   printed    and    published 

and  of  general  circulation  in  County,  Ohio),  said  lands  and 

tenements  to  be   sold  at  public  sale   at  the   door   of  the   court   house 

of  said  county,  on  the  day  of  ,  A.  D.  one  thousand 

nine   hundred   ,   at  o'clock,   m.    of   said    day.      And 

having  advertised  the  said  lands  and  tenements  for  more  than  thirty 
days  previous  to  the  day  of  sale,  to-wit:  five  consecutive  weeks 
on   the   same  day   of   the   week   in   each   week;    and    in   pursuance   of 

said  notice,  I  did,  on  said day    of ,  A.  D.  one  thousand 

nine  hundred  ,  at  the  time  and  place  above  mentioned,  pro- 
ceed to  offer  said  lands   and  tenements  at  public  sale,   at  the  door 


553  forms. 

of  said   court   house,   and   then   and   there   came   M.   C,   who   bid   for 

the    same    the    sum    of    dollars,    and    said    sum    being   more 

than  two-thirds  of  the  appraised  value  thereof,  and  said  M.  C.  being 
the  highest  and  best  bidder  therefor,  I  then  publicly  sold  and  struck 

off  said  lands  and  tenements  to  him  for  said  sum  of  dollars. 

G.   J.   K., 

Sheriff. 

No,  351.     Proof  of  publication  of  legal  notice  of  sale. 

State  of  Ohio,  County,   ss. : 

I,   R.   A.    B.,   being   duly    sworn,    depose   and   say   that   I   am   book- 
keeper of  ;   that  the  notice  of  G.  J.  K.,  sheriff,  case  No.  

of  which  a  true  copy  is  hereunto  affixed,  was  published  once  a  week 

for    five    consecutive    weeks,    to-wit:    ,    ,    ,    , 

,  and  immediately  prior  to  the  day  of  ,  A.  D. 

19 ,   the   day  of  sale  therein  mentioned   in   The  ,   a   daily 

newspaper  printed  in  the  City  of  ,  County  of  ,  State 

of ,  and  of  general  circulation  therein.  R.  A-.-B. 

Sworn  to  before  me,  and  subscribed  in  my  presence  this  


day  of  ,  A.  D.  19 .  C.  F.  P., 

Notary    Public    in    and    for   County. 

No.  352.     Legal  notice  of  sheriff's  sale  of  real  estate — Sheriff's 
sale  of  real  estate. 

Court  of  Common  Pleas,  County,  Ohio. 

M.    C, 

Plaintiff, 

vs.  Case  Xo.  . 

The  Unknown  Heirs  of  

Defendants. 

In  pursuance  of  an  order  of  sale  from  said  court  to  me  directed. 
I  will  offer  for  sale  at  public  auction  at  the  door  of  the  court  house, 

in  the  City  of  ,  County,  Ohio,  on  the  day 

of ,  A.  D.  ,  at  o'clock  a.  m.,  the  following  described 

real  estate  situated  in  the  County  of  and  State  of  Ohio  and 

in  City   of  ,   and  bounded  and   described   as    follows:      (Here 

describe  it).     Said  lot  is  situated  on  Avenue,  Street  No.  . 

Appraised  at  $ .     Terms  of  sale,  cash. 


Sheriff. 

No.  353.     Appointment  of  appraisers. 

The  State  of  Ohio,  County,  ss.: 

To  A.  P.  S..  L.  C.  P.  and  J.  J.  B..  Freeholders  of Comity.  Ohio.- 

Whereas,   on    the  day   of  ,   A.    D.    19 .   M.    C. 

filed   in  the   Court  of  Common  Pleas  of  said  County,   Ohio, 


MERWINE    ON    REAL    ACTIONS.  554 

a  petition   against   the   unknown    heirs   of  C.    R.,    praying   said   Court 
for  an  order  to  sell  certain  real  estate  described  in  said  order,  situate 

in    the   County    of  ,   and    State    of   Ohio,   and    in    the    City    of 

and    bounded    and   described   as    follows:       (Here   insert    de- 
scription of  real  estate). 

And  Whereas,  afterward  to-wit:  at  the term  of  said  court, 

A.   D.   19 ,  such   proceedings   were   had   upon  said   petition  by   said 

court,    that   the   sheriff   of  County   was   ordered   to   sell    said 

real  estate,  as  upon  judgments  and  executions  at  law. 

Now,  therefore,  according  to  the  statute  in  such  cases  made  and 
provided,  I  do  hereby  call  and  appoint  you,  the  said  A.  P.  S.,  L.  C.  L. 
and  J.  J.  B.,  an  inquest  and  do  require  you,  on  oath,  forthwith  to  view, 
estimate  and  appraise  the  real  value  of  said  premises,  in  money, 
and  return  to  me  your  doings,  under  your  hands  and  seals. 

Given    under   my    hand   and    seal,    this   day    of , 

A.   D.   19 .  G.   J.   K.    [Seal.] 

Sheriff. 
By  J.  A.  C,  Deputy. 

No.  354.     The  oath  of  the  appraisers. 

Personally  appeared  before  me,  C.  J.  K.,  sheriff  of County 

aforesaid,  the  above  named  A.  P.  S.,  L.  C.  L.  and  J.  J.  B.,  appraisers 
aforesaid,    who    are   judicious,    disinterested    freeholders     and    citizens 

of  said  County  of  ,  and  were  personally  sworn  according  to 

law,  to  discharge  the   duties  of  said   appointment. 

Witness  my  hand  and  seal,  this  day  of  ,   A.   D. 

19 .  G.    J.    K.    [Seal.1 

Sheriff. 

No.  355.     Appraisement. 

To  G.  J.  K.,  Sheriff  of  County,   Ohio,  as  aforesaid: 

In  pursuance  of  the  foregoing  appointment,  we  have  proceeded  to 
view  the  real  estate  and  premises  above  described,  and  from  actual 
view  of  the  same,  we  do  estimate  the  real  value  thereof  in  money  to 

be  dollars    ($ ). 

Given   under  our  hands   and  seals,  this  —  day   of  , 

A.   D.   19 .  L.   C.   L.    [Seal.1 

A.  P.   S.    [Seal.1 
J.    J.    B.    [Seal.] 

No.  356.     Order  of  court  confirming  sale  and  distributing  pro- 
ceeds of  the  sale. 

On  motion  of  the  plaintiff,  and  on  his  producing  the  return  of 
the  sheriff,  of  the  sale  made  under  the  former  order  of  this  court; 
and  the  court,  on  careful  examination  of  the  proceedings  of  said 
sheriff,  being  satisfied  that  the  same  have  been  had  in  all  respects 
in  conformity  to  law  and  the  orders  of  this  court,  it  is  ordered  that 
the  aid  proceedings  and  sale  be,  and  they  are  hereby  approved  and 
confirmed.     And   said  sale  having  been  made  to  the  plaintiff  in   this 


555  FORMS. 

action  and  it  appearing  that  the  proceeds  of  sale  are  insufficient  in 
amount  to  pay  the  costs  of  this  action  and  the  plaintiff's  claim 
herein,   it   is    further  ordered    that   upon    payment   by   the   said   M.   C. 

of  the  costs   of   this   action,   taxed   at   $ ,   and    the   usual    fee  for 

the  deed,  the  said  sheriff  convey  to  said  purchaser  M.  C,  by  deed, 
according  to  law,  the  property  so  sold,  and  a  writ  of  possession  is 
awarded  to  put  said  purchaser  in  possession  of  said  premises. 

It  is  further  ordered  that  the  clerk  enter  as  a  payment  of  plaintiff's 
judgment  claim  herein,  the  proceeds  of  said  sale  in  excess  of  the 
costs  herein  paid,  amounting  to  $ . 

No.  357.     The  sheriff's  deed  in  foreclosure  of  tax  lien. 

To  all  Persons  to  whom  These  Presents  shall  come,  Greeting: 

Whereas,  on  the  day  of  ,  19 ,  M.  C,  plaintiff,. 

filed   his   certain    petition    and    then    and    thereby    commenced    a    civil 

action  in  the  Court  of  Common  Pleas,  County,  Ohio,  agairst 

the    unknown    heirs    of   C.    R.,   and    numbered    on    the   docket   of   said 

court    as    case    No.    ,    praying    therein,    among    other    things,    for 

the  sale  of  certain  real  estate  in  said  petition  and  hereinafter  de- 
scribed;   and 

Whereas,  it  was  then  and  there  ordered,  adjudged  and  decreed 
by  said  court  in  said  action  that  unless  the  said  defendants,  the 
unknown  heirs  of  said  C.  R.  should  pay  the  costs  of  said  suit  and 
to  the  said  M.  C.  the  amount  so  found  due  within  three  days  from 
the  entry  of  said  decree,  said  premises  should  be  sold  and  an  order 

of  sale  should  issue  therefor  to  the  sheriff  of  said  County  of  , 

commanding  him  that  he  should  cause  the  lands  and  tenements  in 
said  petition  and  order  mentioned  and  hereinafter  described,  to  be 
appraised,  advertised  and  sold  according  to  law,  and  to  return  his 
proceedings   to   said   court;    and 

Whereas,  afterwards,  on  the  day  of  ,  19 ,  in 

pursuance  of  the  said  order  and  judgment  of  said  court  in  said  case 

directed    to   G.    J.   K.,   sheriff   of   County,   Ohio,    commanding 

him  to  execute  the  said  order  and  in  all  things  to  be  governed  by 
the  provisions  of  the  statute  in  such  cases  made  and  provided  and 
of  said  order,  with  his  proceedings  thereon,  he  should  make  due  re- 
turn;  and 

Whereas,  I.  G.  J.  K.,  sheriff  as  aforesaid,  having  caused  sail  prem- 
ises to  be  appraised  and  a  copy  of  the  appraisement  to  be  duly  filed 
in  the  office  of  the  clerk   of  said   county,   and   having  advertised  the 

time    and  place  of  selling  the  same  in  — . ,  a  newspaper  printed 

and  of  general  circulation  in  said  county  for  a  period  of  thirty  days 
prior  to  the  date  of  sale,  and  otherwise  complied  with  the  said  order 
and  the  provisions  of  the  statute   in  such   cases  made  and   provided, 

on   the    day   of  ,    19 ,    at    the   door   of   the   court 

house  in  said  county  at  o'clock,  m.  of  said  day,  1  exposed 

to    sale    at    public    auction    the    premises    hereinafter    mentioned,    and 

thereupon   M.   C,   having  bid    for  said    premises   the   sum   of   $ , 

and  said   sum   being    the   highest   and   best   bid   offered    for   the   same 


MERWINE    ON    REAL   ACTIONS.  556 

and  being  more  than  two-thirds  the  appraised  value  thereof,  the  said 
premises  were  then  and  there  struck  off  to  him,  the  said  M.  C, 
the  purchaser,   for  the   sum   above  mentioned:    and 

Whereas,  the  said  court,  at  its term,  19 ,  having  ex- 
amined the  proceedings  aforesaid  in  the  premises  under  said  order 
of  sale,  and  being  satisfied  that  the  sale  aforesaid  had  been  made  in 
all  respects  in  pursuance  to  said  judgment  and  order  of  sale  and 
in  accordance  with  the  provisions  and  requisitions  of  the  statute  reg- 
ulating   such    sales,    did    order    that    such    sale    should    be    confirmed, 

and   that   said   sheriff  -of   County,    Ohio,    should   convey   the 

said  real  estate  by  deed  in  fee  simple  to  the  purchaser,  M.  C. 

Now  Know  ye,  that  I,  the  said  G.  J.  K.,  sheriff  of County, 

Ohio,  as  aforesaid,  by  virtue  of  said  judgment,  order  of  sale  and 
confirmation,  and  of  the  statute  in  such  cases  made  and  provided  and 

for  and  in  consideration  of  the  premises  herein  in  the  sum  of  $ , 

which  I  acknowledge  to  have  received  from  the  purchaser  above 
named,  do  hereby  grant,  sell  and  convey  to  him,  the  said  M.  C,  his 
heirs  and  assigns,  forever,  the  following  described  real  estate  situated 

in  County,  State  of  Ohio,  and  in  the  City  of  ,  and 

described  as  follows:  (Here  insert  description  of  real  estate),  to- 
gether with  all  the  privileges  and  appurtenances  thereto  belonging 
and  all  the  right,  title  and  interest  of  the  said  G.  J.  K.,  sheriff  of 
County,  Ohio,  and  of  all  the  other  parties  of  and  to  the  same. 

To  Have  and  to  Hold  the  premises  aforesaid  unto  the  said  M.  C, 
his   heirs   and   assigns    forever,   as   fully    and   completely   as   the    said 

G.  J.  K.,  sheriff  of  County,  Ohio,  by  virtue  of  said  judgment, 

order  of  sale  and  confirmation  and  of  the  statutes  made  and  provided 
for  such  cases,  might  or   should   sell   and  convey  the   same. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 

day  of  — ,  19 . 

[Seal.] 

Sheriff  of  County,  Ohio. 

Signed,  sealed  and  acknowledged  in  presence  of 


State  of  Ohio,  County,  ss. : 

Personally    appeared   before   me,   a    notary    public   within   and   for 

said  county,   the  above   named   G.   J.   K.,   sheriff   of   County, 

Ohio,  and  grantor  in  the  above  deed  of  conveyance,  who  acknowledged 
the  signing  and  sealing  of  the  same  to  be  his  voluntary  act  and 
deed  for  the   uses   and  purposes  therein  mentioned. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 

■ day    of   ,   19 . 

[Seal.] 

Notary  Public,  County,  0. 


OO  i  FORMS. 

No.  358.     Tax  certificate — Delinquent  tax  sale. 
State  of  Ohio,  County,  ss.: 

I,   ,    county    auditor    of    County,    do    certify    that 

there    was    sold    unto *-,    Township    of    ,    entered    on 

tax   duplicate    in   the   name   ot    ,    to    whom    said    land,   lot    or 

part    of    lot    was    charged    with    tax    and    penalty    for    the    sum    of 

dollars,   the   amount   due   on   above   described   premises    for 

the  years  and  .     For  which  lot  or  tract  of  land  the 

said  purchaser  or  his  assigns  will  be  entitled  to  receive  a  deed  on 
presentation  of  this  certificate,  at  the  expiration  of  two  years  from 
this  date  unless  the  same  shall  have  been  redeemed  prior  to  that  time. 

Given  under  my  hand  and  seal  this  day  of  ,  A. 

D.   .  . 

County   Auditor. 

To   the  County  Surveyor   of  said  County: 

You  are  hereby  authorized  and  required,  whenever  requested  by 
the  purchaser  or  his  assigns,  to  lay  off  by  metes  and  bounds  the 
above    described    lot    or    parcel    of   land,    according    to    the    statute    in 

such  case  made  and  provided.  , 

County   Auditor 

No.  359.    Auditor's  deed — Delinquent  sale. 

Know    all   Men   by    these   Presents,   That,    whereas,    the    county 

treasurer  ot  County,  Ohio,  did,  on  the  day  of , 

A.   D.  ,  sell  according  to  the  provisions  of  the  statute  in  such 

cases  made  and  provided,  to a  part  of  the  following  described 

lot  or  parcel  of  land,  situated  in  the  said  County  of  ,  for  the 

taxes,  interest  and  penalty  charged  thereon  for  the  year  ,  and 

also  the  simple  tax  for  the  year  ,  and  listed  for  taxation  on 

the  duplicate  of  said  county,  in  the  name  of  ,  to-wit:      (Here 

describe  real  estate).  And  the  same  having  been  duly  advertised, 
agreeably  to   law,    and   the  taxes,   interest,   and   penalty   due   thereon 

remaining   unpaid    on   the   day    of   ,    A.    D.    ,    the 

time  appointed  by  law,  and  also  in  and  by  the  advertisement  for  the 

sale  of  delinquent  lands  set  forth,  the  said  was  by  , 

treasurer  of  said  county,  between  the  hours  of  ten  o'clock  in  the 
forenoon    and    six    o'clock    in    the    afternoon    of   said    day    offered    for 

sale,  at  which  time  and  place  came  ,  who  bid  to  pay  said 

taxes,  interest  and  penalty  for  ,  being  all  of  the  said  

above    mentioned,    and    there    being   no    bidder    who    would    pay    the 

taxes   aforesaid    for   a   less    quantity,   the   said   were   struck 

off  and   sold   to   the   said   for  the   sum    of   $ ,   being 

the  amount  of  said  taxes,  interest  and  penalty,  which  said  sum  was 
forthwith  paid  by  said  purchaser  to  said  county  treasurer. 

And  more  than  two  years  having  elapsed  from  the  time  of  said 
sale,  and  the  land  so  sold  as  aforesaid  not  having  been  redeemed,  and 

the  certificate  of  said  sale,  duly  assigned  to  the  said  having 

been  produced  to  me. 


MERWINE   ON    REAL    ACTIONS.  558 

Now,  Therefore,  on  request  of  the  said  I,  the  said 


auditor  of  said  County  of ,  in  consideration  of  the  premises 

aforesaid,   and   by  virtue  of  the  authority  in  me  vested   by   the   laws 

of  the  State  of  Ohio,  do  hereby  grant  and  convey  to  said the 

premises  sold  as  aforesaid. 

To  Have  and  to  Holij  the  said  premises  hereby  conveyed,  with 
the  appurtenances  thereof,  to  the  only  proper  use  and  benefit  of  the 
heirs  and  assigns,  forever. 

In  Witness    Whereof,  the  said  ,  as  county  auditor  of  said 

County  of  ,  hath  hereunto  set  his  hand  and  seal  officially,  this 

day  of ,  A.  D. . 


(Seal.) 


Auditor  of  County. 

Signed,  sealed  and  acknowledged  in  presence  of 


The   State  of  Ohio,  County,  ss.: 

Before  me,  the  subscriber,  ,  in  and  for  the  county  afore- 
said,   personally    appeared    ,    county    auditor    of    said    County 

of  ,  and,  as  such,   acknowledged  the  above   instrument  to   be 

his  official  act  and  deed,  for  the  purposes  therein  expressed. 

Given  under  my  hand  and  official  seal,  this  '■ day  of , 

A.  D.  .  • 

No.  360.     Petition  by  treasurer  of  county  to  sell  real  estate 
for  payment  of  taxes  and  street  assessments. 

Court  of  Common  Pleas,  County,  Ohio. 

,  as  Treasurer  of 

County,  Ohio, 

Plaintiff, 
vs. 
C.   M.  C,  as  Executor   of   the  Last 
Will  and  Testament  of  H.  T.  C, 
deceased,  C.  M.  C.  and  H.  C.  Z.( 
Defendants. 

Petition. 

Plaintiff    says    that   he   is    the    duly    elected,    qualified    and    acting 

treasurer  of County,  Ohio;  that  C.  M.  C.  is  the  duly  appointed, 

qualified  and  acting  executor  of  the  last  will  and  testament  of  H. 
T.    C,    deceased,    duly    appointed    as    such    by    the    Probate    Court    of 

County,   Ohio;    that   the   defendants   C.    M.    C.   and    H.   C.   Z. 

by  the  provisions  of  s;:id  last  will  and  testament  of  the  said  H.  T. 
C,  deceased,  are  the  owners  of  the  real  estate  hereinafter  described; 
that  taxes  and  assessments  heretofore  duly  levied  and  assessed  for 
lawful    purposes  stand   charged   on   the   tax   duplicate   of  said   county, 


559  FORMS. 

on  the  day  of ,  19 .  against  the  following  de- 
scribed  real   estate:    (Here   describe   it). 

Said  taxes  and  assessments  are  due  and  unpaid;  that  said  real 
estate  was  forfeited  to  the  State  of  Ohio  for  the  non-payment  of 
taxes,  and  now  stands  on  the  duplicate  in  the  name  of  the  State. 

Wherefore  plaintiff  prays  that  the  defendants  herein  be  required 
to  answer,  setting  forth  their  claims  and  interests  in  and  to  said 
property,  if  any  they  have,  or  be  forever  barred  from  asserting  the 
same;  that  decree  may  be  rendered  in  his  favor  for  the  amount  of 
said  taxes  and  assessments  and  the  costs  of  this  action;  that  said  real 
estate  shall  be  by  the  court  ordered  sold  to  pay  the  same,  subject 
to  a  lien  of  the  undue  assessments  and  taxes  and  free  from  all  claims 
and  interests  of  said  defendants,  and  that  out  of  the  proceeds  of 
such  sale  the  amount  so  found  due  plaintiff  be  first  paid  and  dis- 
tribution made  according  to  law  and  for  such  other  relief  as  may 
be  just. 


Attorneys  for  Plaintiff. 
(This  petition  is  verified  as  in  other  cases.) 

No.  361.     Order  of  sale  under  the  above  petition. 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of 
plaintiff,  the  defendants  and  each  of  them  being  in  default  for  answer 
or  demurrer  to  the  petition,  thereby  confessing  the  allegations  in 
said  petition  and  in  each  thereof  to  be  true,  and  on  consideration 
thereof  the  court  finds  the  allegations  of  said  petition  to  be  true; 
that  plaintiff  is  entitled  to  the  relief  prayed  for  in  his  petition; 
that  said  C.  M.  C.  and  H.  C.  Z.  are  the  sole  devisees  under  the 
last  will  and  testament  of  H.  T.  C,  deceased,  of  the  real  estate  de- 
scribed in  the  petition,  to-wit:  (Here  describe  it),  and  that  there 
is  now  due  and  owing  to  said  treasurer  as  aforesaid,  taxes  and  assess- 
ments,  including  the   taxes   and   assessments   due   and    unpaid   on   the 

day  of  ,   19 ,  amounting  to   the  sum  of  $ , 

and   that  said   taxes  and  assessments  so   found   due  are  the  first  and 
best  lien  on  said  real  estate. 

Tt    is     therefore    ordered,    adjudged    and    decreed    that    unless   said 

defendants,  or  some  one  for  them,  within  da\  s  from  the  entry 

of  this  decree,  pay  to  the  clerk  of  this  court  the  costs  of  this  action 
and  to  said  treasurer  aforesaid,  the  said  taxes  and  assessments  so 
found  due,  said  real  estate  shall  be  sold  according  to  law  by  sheriff 
of  said  county,  free  and  clear  of  the  lien  for  said  taxes  and  assess- 
ments and  free  and  clear  from  all  claims  and  demands  of  the  de- 
fendants herein,  for  the  payment  of  such  costs,  taxes  and  assessments 
so  found  due  and  that  the  proceeds  of  such  sale  be  brought  into  court 
to  await  the  further  orders  thereof.  For  good  cause  shown  German 
publication   is  ordered  omitted. 


MERWINE    ON    REAL   ACTIONS.  560 

No.  362.     The  answer  containing  general  denial — Defense  of 
corner  lot — And  the  statute  of  limitations. 

(Same  caption  as   in   the  petition.) 

1.  First    defense.      Now    comes    the    defendant,    ,    and    in 

answer  to  the  petition  of  ,  as  treasurer  of  County, 

Ohio,  admits  that  she  is  the  owner  of  the  real  estate  described  in 
the  petition,  the  same  being  (here  describe  it).  The  defendant  denies 
every  other  allegation  of  said  petition  not  herein  specifically  admitted 
or  denied. 

2.  Defendant,  for  her  second  defense  herein,  avers  that  on , 

an  ordinance  was  passed  by  the  council  of  the  City  of  ,  Ohio, 

for  the  improvement  of Street  from Street  to 

Street   and   that   there   was    assessed   against   the    real    estate    of   said 

defendant,  described  herein,  the  sum  of  $ ,  this  said  sum  being 

an  assessment  for  feet  at  the  rate  provided  in  the  ordinance 

of   $ per   foot,    said   feet   being   the   full    length   of   said 

lot    xo.    along   Street.      Defendant    further    avers    that 

her  said  lot  No.  has  a  frontage  of feet on 

Avenue   and   that  no   part    of  it   fronts   on   Street   excepting 

a  building  on  the  rear  of  said  lot  which  fronts feet  on . 

Defendant   avers   that   the   total    frontage   on    which   she   should   have 

been    assessed    is    feet    inches,    which,    at    the    rate    of 

$ ,  should  have  been  $ . 

3.  For  her  third   defense   herein  defendant  avers   that   under   the 
ordinance   said   payments   on    said    improvement   were   to   be  made   in 

equal    installments,    the    first    becoming    due    and    payable    in 

,  and   the  others   in  of   each  consecutive  year   from 

to    ,    inclusive.      Defendant    avers    that    the    interest 

on  said  assessment  was  made  payable  to  ,  inclusive, 

and  was  charged  on  the  books  of  the  county  treasurer  in  equal  install- 
ments in  and of  each  year  from  to  

inclusive. 

Defendant  avers  that  the  assessment  was  passed  and  that 

on  ,  the  assessment  was  certified  to  the  county  treasurer  for 

collection  and  that  from  that  date  tbe  assessment  and  interest  due 
thereon  have  stood  on  the  books  of  the  said  county  treasurer  and 
that  he  has  made  no  effort  to  collect  the  same. 

Wherefore,   defendant  prays  that   the  original  assessment  be  fixed 

at  $ ,  and  that  the  statute  of  limitations  be  applied  to  each  and 

all  of  the  corrected  installments  and  interest  thereon  which  became 
due  and  payable  more  than  six  years  prior  to  the  bringing  of  this 
action,  and  prays  that  all  said  installments  and  interest  therein  be 
barred  by  the  statute  of  limitations. 

Duly  verified 


Attorneys  for  Defendant. 


561  FORMS. 

No.  363.     The  reply  to  this  answer. 

Now   comes   the   plaintiff   and   by   way   of  reply   to   the  answer  of 

the   defendant,  ,   says   that   he   admits   as   true   each   and  all 

of  the  averments  as  set  forth  in  the  second  defense  in  the  answer 
of  said  defendant  and  that  the  original  amount  of  the  said  assess- 
ment  should   have    been    for    the   sum    of   $ as    in    said   second 

defense  set  forth. 

By  way  of  reply  to  the  third  defense  of  said  answer  plaintiff  says 
that    he   admits    that    in   the    said    ordinance    said    payments    on    said 

improvement  were  to  be  made   in  equal   installments,  as   in 

said  third  defense  set  forth,  and  that  the  interest  on  said  assessment 
was  made  payable  and  was  charged  on  the  books  of  the  said  county 
treasurer  as  in  said  third  defense  set  forth. 

Plaintiff  further  admits  that  the  assessment  was  passed  on  , 

and  that  on  ,  the  assessment  was  certified  to  the  county  treas- 
urer for  collection,  and  that  from  that  date  the  assessment  and  interest 
due  thereon  have  stood  on  the  books  of  the  said  county  treasurer. 

Further  by  way  of  reply  plaintiff  says  that  he  denies  each  and 
every  allegation  in  said  answer  set  forth  not  herein  specifically  ad- 
mitted to  be  true. 


Attorneys   for  Plaintiff. 
Duly  verified. 

No.  364.     The  finding  and  decree  of  the  court  in  foreclosure 
of  an  assessment  lien. 

This  day  this  cause  came  on  to  be  heard  on  the  petition,  the  answer, 
the  reply  and  agreed  statement  of  facts,  and  the  court,  upon  con- 
sideration thereof,  being  duly  and  fully  advised  in  the  premises,  finds 
the  facts  as  set  forth  in  the  agreed  statement  of  facts  to  be  true. 

The  court  further  finds  that  the  averments  of  defendant  as  set 
forth  in  the  second  defense  of  her  answer  are  admitted  to  be  true 
in  the  reply  of  plaintiff,  and  that  the  original  assessment  against  said 

lot  should  have  been   and   is   hereby  adjudged   to  properly    be 

the  sum  of  $ ,  with  interest  thereon  computed  according  to  the 

said  assessment  ordinance.     The  court  further  finds   that   the  install- 
ments  of    the    principal    should   have    been   and    are    hereby    adjudged 

to   be   the   sum   of    $ ,   payable    in  equal    installments    in 

of  each   year,   from   to  ,   inclushe,   and    that 

the   semi-annual    installments   of    interest   on    said    assessment    should 

have  been  and  are  hereby  adjudged  to  be  the  sum  of  $ ,  payable 

in   and    of    each   year    from    to    

inclusive. 

The  court  further  orders  and  directs  the  county  auditor  and  county 
treasurer  to  strike  from  the  tax  duplicate  any  sum  or  sums  in  excess 
of   the   corrected    amounts    herein    determined   and    decreed. 

The  court  further  finds  that  all  installments  of  said  assessments 
and   the    interest   thereon   as   in   the   petition   set   forth   and    for  the 


MERWINE    ON    REAL    ACTIONS.  562 

corrected  amounts  as  determined  by  this  decree  falling  due  and  payable 

,  and  prior  thereto,  are  barred  by  the  statutes  of  limitation, 

to  which  finding  of  the  court  plaintiff  herein  excepts. 

The   court   further  finds   that  there    is   due   ,   as   treasurer 

0f  County,  Ohio,  in  his  official  capacity  on  said  assessment, 

together  with  interest  thereon,  as  in  the  petition  set  forth  and  as 
corrected   by    this   decree,    duly   levied   and   assessed   on   the    said   lot 

Addition,  as  the  same  is  more  particularly  described   in  the 

petition  herein,  the  sum  of  $ ,  with  interest  from  ,  the 

said  sum  being  the  amount  of  all  installments  of  said  corrected  assess- 
ment and  interest  thereon  due  and  payable  and  thereafter. 

It  is  further  considered,  adjudged  and  decreed  by  the  court  that 
unless  the  said  defendant  pay  or  cause  to  be  paid  to  plaintiff,  the 
said  installments  of  said  corrected  assessment  with  interest  as  afore- 
said, as  set  forth  in  this  decree,  within  three  days  from  the  entry 
of  this  decree,  that  said  real  estate  be  sold  for  the  payment  of  said 
installments  of  said  corrected  assessment  and  interest  thereon  as 
provided  by  law,  to  all  which  finding  and  order  of  the  court  the  de- 
fendant herein  excepts.  Plaintiff  gives  notice  of  appeal  and  appeal 
bond  fixed  at  $ . 


CHAPTER  XV. 

THE   LAW   ANT    PROCEDURE   WHERE   DOWER   IS 

ASSIGNED. 


SECTION. 

452.     Origin  of  dower. 

Of    what    estate    a    widow    or 

widower  is  entitled  —  The 

statute. 
Inchoate  dower. 
When  inchoate  right  of  dower 


453. 


454. 
455. 


45G 


457. 

458. 

459. 
400. 
461. 
462. 
403. 


not  assignable. 


Consummate  dower  unas- 
signed  can  not  be  reached 
by  creditors,  but  by  an  ac- 
tion  in  equity. 

Inchoate  right  of  dower  re- 
leased by  order  of  court, 
when. 

Dower  subject  to  every  in- 
firmity the  law  attaches  to 
the  seizin. 

Marriage  necessary  to  create 
dower. 

The  seizin  necessary  to  create 
dower. 

To  what  property  dower  will 
attach. 

Lands  in  which  dower  will  not 
attach. 

Jointure — Its  character  and 
essential  elements  —  Post- 
nuptial and  antenuptial 
contracts. 

464.  The   right   of    dower    in   part- 

nership realty. 

465.  The    widow's    right    of    dower 

where  there  are  conflicting 
liens   and  claims. 
-J66.     Widow's    right    of    dower     in 
■   partition  proceedings. 
When    she    may    have    home- 
stead   in    addition    to    her 
di  wer. 
In  what  cases  she  may  redeem 
real  estate  and  have  dower 
assigned. 
563 


467. 


468. 


SKCTIOX. 

409.     The  effect  of  a  defective  con- 
veyance of  dower. 

470.  Effect  of  eviction  from  prem- 

ises conveyed  in  lieu  of 
dower. 

471.  Adultery  bars  dower. 

472.  Effect  upon  dower  where  lands 

are  given  up   by   fraud. 

473.  Dower  is  forfeited  by  waste. 

474.  Dower  is  forfeited  by  non-pay- 

ment of  tax,  when — Widow 
liable  in  damages,  when. 

475.  How   dower   may   be  assigned 

by  heirs  of  deceased. 

476.  The  petition  for  dower. 

477.  Procedure   incidental   to   such 

action  for  dower — How  en- 
cumbrances may  be  set  up 
— Cross-petition. 

478.  Procedure   where   land  lies   in 

different  counties. 

479.  Procedure  in  case  of  death  of 

plaintiff  before  assignment. 

480.  Appointment    of    commission- 

ers to  assign  dower — Duty 
of  sheriff  in  such  cases. 

481.  Proceedings  upon  return  of  an 

assignment  of  dower. 

452.  How  dower  assigned  when  es- 

tate is  indivisible. 

453.  When  estate  consists  of  unim- 

proved timber  land — How 
treated. 

484.  Dower      during     pendency      of 

petition. 

485.  Exemption        in       estimating 

yearly    value    of    dower. 

486.  Minor    heir    not    to    be    preju- 

diced by  collusive  assign- 
ment. 

487.  Costs  in  action  for  dower. 


§  452  MERWINE   ON   REAL   ACTIONS.  564 

SECTION.  SECTION. 

488.  Dower   may   be  elected   to   be       496.     Wife    barred    of    dower    when 

taken    out    of    proceeds    o&  divorce  granted  husband  on 

sale,  when.  account   of   her   aggression. 

489.  Election  in  answer  is  a  release       497.     Dower     rights     when    divorce 

of  dower,  when.  granted    by    the    reason    of 

490.  Election  for  widow  or  widower  the  aggression  of  the   bus- 

by guardian,  when.  band. 

491.  Petition  to  discharge  land  of       498.     Election   when   person   unable 

dower  of  insane  person.  to  appear,  or  is  a  non-resi- 

492.  Report    of    committee    to    in-  dent. 

quire  into  insanity.  499.     How   election    of    an    imbecile 

493.  Proceedings    on   report   of   in-  or   insane   person   is   made. 

sanity  to  court.  500.     Effect  of   widow's  election  of 

494.  Lands  of  insane  person  barred  non-election. 

of  dower,  how.  501.     Election    of    widow    to    take 

495.  Conveyance  of  real  estate  free  under  will  bars  dower  un- 

from  dower,  if  wife  or  bus-  less  the  will  provides  that 

band  is  insane.  she  shall  have  both. 

Sec.  452.     Origin  of  dower. 

Dower  is  of  very  ancient  origin.  In  fact  the  time  of  its 
introduction  into  the  laws  of  England  is  quite  doubtful.1 

It  is  known,  however,  that  the  law  on  the  subject  was 
classified  by  Glanville  and  by  him  reduced  to  a  system.  He 
tells  us  that  it  was  the  property  given  by  a  free  man  to  his 
wife  ad  ostium  ecclesiae,  at  the  time  of  the  betrothal.  This 
was  as  early  as  the  year  1148.  In  the  year  1481,  we  find 
Littleton  enumerating  five  heads  of  dower:  (a)  Dower  by 
the  common  law.  (b)  Dower  by  the  custom.  (c)  Dower 
ad  ostium  ecclesiae.  (d)  Dower  ex  assensu  patris.  (e)  Dower 
de  la  pluis  beale. 

Again,  in  the  year  1225,  we  find  it  in  Magna  Charta,  which 
provides  on  the  subject  as  follows:  "And  for  her  dower 
shall  be  assigned  unto  the  widow  the  third  part  of  all  the 
lands  of  her  husband  which  were  his  in  his  lifetime,  except, 
she  were   endowed   of  lessee   at   the   church   door."2 

The  subject  of  dower  has  been  a  part  of  our  law  since  the 
organization  of  the  Northwest  Territory;  for  we  find  pro- 
vision made  for  it  in  the  ordinance  of  1787.3 

This  famous  ordinance  of  1787  contained  the  following  pro- 
vision  ;is  to  dower: 

That   the   estates   of   resident   and   non-resident   proprietors 

i  Allen  v.  McCoy,  S  O.  409.  3  Allen  v.  McCoy,  8  O.  4G9. 

2  Allen    v.   McCoy,   8    O.   4-22;    C. 
7  Magna  Charta.  Henry  III. 


565 


LAW    AND    PROCEDURE    WHERE   DOWER   ASSIGNED. 


§452 


in  said  territory,  dying  intestate,  shall  descend,  etc.,  saving 
in  all  cases  to  the  widow  of  the  intestate  her  third  part  of 
the  real  estate  for  life.4 

Immediately  after  Ohio  was  carved  as  a  State  out  of  the 
Northwest  Territory,  its  Legislature  provided  for  dower  by 
statutory  enactment.3 

Ever  since  the  organization  of  the  State,  the  common  law 
right  of  dower  has  been  so  modified  and  controlled  from  time 
to  time  by  legislative  enactment,  that  it  would  now  seem  to 
be  solely  a  creature  of  the  statute.6 

As  our  courts  and  text  writers  have  so  clearly  set  forth  the 


4  Allen  v.  McCoy,  8  0.  442;  see 
also  Ruffner  v.  McLean,  16  0.  041; 
Conger  v.  Barker,  11  0.  S.  1. 

s  The  first  enactment  on  this  sub- 
ject was  in  1804,  and  it  was  this: 
"That  the  widow  shall  be  entitled, 
during  her  life,  to  the  use  of  one- 
third  part  of  all  the  real  property 
that  her  husband  was  seized  of  dur- 
ing coverture,  unless  she  shall  have 
joined  with  her  husband  in  the  con- 
veyance." Ruffner  v.  McLean,  10 
0.'  645. 

cMcGill  v.  Deming,  44  0.  S.  652. 
''The  plaintiff  insists  that  before 
the  statute  of  1804,  no  right  of 
dower  subsisted,  except  such  as  was 
created  by  these  words:  (Territo- 
rial enactment),  and  as  they  are 
used  in  no  other  connection,  than  in 
respect  to  lands  descended,  it  is  in- 
ferred that  no  right  of  dower  sub- 
sisted, except  in  the  lands  of  which 
the  intestate  died  seized.  If  the 
estate  of  dower  had  no  existence, 
except  by  virtue  of  the  ordinance, 
it  would  be  difficult  to  escape  this 
conclusion.  But  there  are  certain 
institutions  and  rights  which  seem 
to  have  their  foundation  in  the  very 
constitution  of  the  human  race.  No 
nation  has  been  found  so  rude  or 
uncivilized  as  not  to  have  provided 
for  itself  rules  which  regulate  the 
relation  of  marriage,  those  between 
parent  and  child,  and  the  succes- 
sion of  decedent's  estates.  And  m  n 
could  no  subsist,  either  m  sociely 
or  the  family,  unless  these  matters, 


at  least,  are  controlled  by  some  rule 
which  possesses  the  force  of  law. 
In  all  of  the  nations  of  the  Teu- 
tonic stock,  some  right  of  dower 
has  been  found  to  exist  from  the 
earliest  antiquity.  The  right  has 
received  various  modifications  at 
-different  times  and  in  different  coun- 
tries; but  before  the  concessions  of 
the  Great  Charter,  it  attuned  in 
England  the  modern  form,  by  which 
it  attached  to  all  lands  of  which  the 
husband  had  seizin  during  cover- 
ture. This  continues  to  be  the  law 
of  England,  and  is  the  law  in  most 
States  of  the  Union.  Such  is  the 
common  law  of  dower;  an  institu- 
tion existing  wherever  the  common 
law  obtained;  a  rule  which  each 
people  has  the  power  to  change,  but 
a  conception  which  none  could  shake 
off  without  substituting  some  other 
provision  in  its  stead.  It  was  to 
a  people,  under  the  dominion  of 
this  idea,  that  the  ordinance  was 
addressed,  and,  far  from  assuming 
to  prescribe  a  different  rule,  or  con- 
firming r  new  right,  it  does  no 
more  than  recognize  an  existing  in- 
stitution, and  takes  care  that  it 
receive  no  prejudice  by  the  opera- 
tion of  the  law  of  descent ~.  We  can 
regard  it  as  no  less  than  an  au- 
thentic acknowledgment  of  the  es- 
tate in  dower  at  common  law.  to 
which  law  we  must  recur  to  learn 
the  signification  of  the  term  and 
the  extent  of  the  doweress'  interest." 
Betts  v.  Wise,  11  0.  222. 


§453 


MERWINE   ON    REAL   ACTIONS.  566 


law  upon  the  subject  of  dower  as  it  exists  to-day,  the  practi- 
tioner seldom,  if  ever,  needs  go  back  to  the  old  learning  on 
this  subject  to  clear  up  any  present  difficulty. 

Cec.  453.     Of  what  estate  a  widow  or  widower  is  endowed — 
The  statute. 

A  widow  or  widower  who  has  not  relinquished,  or  been 
barred  of  the  same,  shall  be  endowed  of  an  estate  for  life 
in  one-third  of  all  the  real  property  of  which  the  deceased 
consort  was  seized  as  an  estate  of  inheritance  at  any  time 
during  marriage,  and  in  one-third  of  all  the  real  property  of 
which  the  deceased  consort,  at  decease,  held  the  fee  simple 
in  reversion  or  remainder ;  and  also  in  one-third  of  all  the  title 
or  interest  that  the  deceased  consort  had,  at  decease,  in  any 
real  property  held  by  article,  bond,  or  other  evidence  of  claim ; 
and  the  widow  or  widower  may  remain  in  the  mansion  house 
of  the  deceased  consort,  free  of  charge,  for  one  year,  if  dower 
is  not  sooner  assigned;  but  dower  shall  not  be  assigned  to 
any  widow  or  widower  in  any  real  property  of  which  the  de- 
ceased consort,  at  decease,  held  the  fee  simple  in  reversion  or 
remainder  until  the  termination  of  the  prior  estate.7 

Early  in  the  judicial  history  of  the  subject  of  dower  our 
courts  refused  to  adopt  the  quaint,  old  and  almost  incom- 
prehensible learning  as  to  the  law  of  dower,  and  the  subject 
is  now  regarded  as  follows: 

It  is  considered  that  the  statute  laws  of  Ohio,  from  the  pro- 
visions in  the  ordinances,  and  running  through  every  enacU 
ment  to  this  day,  contemplated  dower  as  a  plain,  unentangled 
interest  of  the  wife  in  the  real  estate  of  the  husband.  The 
remedy  given  to  obtain  it,  when  refused,  is  made  simple  and 
direct.  It  is  all  an  honest,  homespun  concern  of  our  own, 
standing  distinct  from  precedents  and  analogies  of  other 
countries,  and  upon  a  basis  sufficient  to  sustain  it.* 

Her  dower  right  is  a  favorite  in  law,  and  its  protection 
under  the  law  is  equal  to  that  accorded  to  her  other  property. 
Her  dower   right    is   superior   to   that  of  the  creditors  of  her 

husband.9 

It  is,  of  course,  unnecessary  to  state  in  this  connection  that 

TGen'l      Code,       §8606       ( R.      S.  "Woml,  J.,   in   Allen   v.   McCoy,  8 

§4188).  0.  467. 

9  Mandel  v.  McClave,  46  O.  S.  414. 


567  LAW    AND    PROCEDURE    WHERE    DOWKR    ASSIGNED  §  454 

the  husband  has  the  same  right  to  dower  in  the  real  estate 
of  the  wife  that  the  wife  has  in  the  real  estate  of  the  husband, 
and  his  dower  rights  are  governed  and  controlled  by  the  same 
law  in  exactly  the  same  manner  as  his  wife's  dower  right. 
Hereafter,  when  the  language  as  to  dower  applies  to  the  wife, 
it  will  also  be  understood  to  apply  to  the  husband  as  well; 
for  the  statute  now  provides  that  all  of  the  law  relating  to 
the  assignment  of  dower  of  a  wife,  shall  apply  to  the  assign- 
ment of  the  dower  of  a  husband  as  far  as  applicable,10  and 
the  estate  by  curtesy  is  abolished,  vested  rights  being  pre- 
served.11 

Since  the  law  was  changed  so  as  to  give  the  husband  dower 
in  the  wife's  property,  the  wife's  dower  interest  remains  the 
same  as  it  did  before  the  passage  of  the  statute,  and  the 
husband's  dower  interest  is  of  the  same  quality.12 

Sec.  454.     Inchoate  dower. 

The  right  of  the  husband  or  the  wife  in  the  real  estate 
of  the  other  before  the  death  of  either,  is  called  an  inchoate 
right  of  dower.  It  is  sometimes  designated  a  contingent  right 
of  dower.  The  various  courts  of  the  State  have  not  been 
in  accord  in  giving  names  to  designate  just  what  kind  of 
property  or  estate  the  inchoate  right  of  dower  is.  It  has 
been  said  of  it  that  dower  inchoate  is  not  an  estate ;  that 
it  is  a  right  of  interest  each  may  have  in  the  land  of  the 
other,  created  by  law  for  the  benefit  of  the  other,  and  that  it 
is  contingent  upon  the   one  surviving  the  other.13 

Another  court  designates  this  inchoate  right  of  dower  as 
a  vested  interest  transferable  in  equity  to  others  before  it 
has  been  assigned  and  set  off  by  metes  and  bounds,  as  a 
vested  interest,  a  right  or  interest  in  land,  a  substantial  right, 
possessing  in  contemplation  of  law  the  attributes  of  property, 
and  to  be  estimated  and  valued  as  such,  as  a  thing-  or  chose 
in  action,  as  a  right  paramount  to  all  subsequent  titles  derived 
through  the  husband  or  wife,  and  as  a  right  which  is  as 
plain  and  obvious  as  the  right  of  an  heir,  as  a  legal  estate 
and  not  a  secret  equity,  and,  until  assigned  and  set  off,  a 
recognized  encumbrance  upon  land  of  the  deceased  husband.14 

ioOen'1  Code,      §8616      (R.      S.           12 McLaren  v.  Stone,  18  C.  C.  854. 

§4194-2).  is  Dukes    v.    Dukes.    3    C.    C.   510. 

11  fien'l  Code       §8614      (R.      S.            «  Stoltz  v.  Boltz,  5  W.  L.  B.  410; 

§4194-1).  McArthur    v.    Franklin,     16     O.     S. 


§454 


MERWINE   ON    REAL   ACTIONS. 


568 


It  is  "a  severe  dormant  encumbrance  upon  the  use  and  cir- 
culation of  real  estate"  which  is  in  practice  "almost  univer- 
sally extinguished  by  an  act  of  the  wife  in  concurrence  with 
the  husband,  upon  sales  and  mortgages  of  real  estate." 

This  inchoate  right  of  dower,  which  the  husband  or  wife 
has  by  virtue  of  their  marriage  and  seizin,  is  a  valuable  right 
and  neither  can  be  deprived  of  it  for  the  benefit  of  the  other's 
creditors  except  by  his  or  her  voluntary  act.16 

Our  courts  finally  took  a  practical  view  of  this  question, 
holding,  as  a  majority  of  our  business  men  do,  that  the  con- 
tingent right  of  the  wife,  during  the  husband's  life,  to  dower 
in  his  real  estate  has  a  positive  and  substantial  value.  And. 
as  one   court   has   said,   no   acuteness   of   artificial   reasoning, 


193;  Unger  v.  Leiter,  32  0.  S.  210; 
see  also  27  la.  148;  12  Ind.  37;  4 
Paige,  448;  1  Smedes  &  M.  ch.  490; 
Weyer  v.  Sager,  21  C.  C.  711,  hold- 
ing that  dower  before  assignment  is 
a  chose  in  action.  Arnold  v.  Don- 
aldson, 46  0.  S.  78;  Mayee  v.  Young, 
40  Miss.  164.  "In  Ohio,  inchoate 
dower  is  held  to  be  a  present  valu- 
able interest  in  the  estate,  some- 
thing more  than  a  naked  possibilit  ; 
it  is  a  present  vested  right  of  value, 
-u-ceptible  of  being  estimated  con- 
tingent on  survivorship."  Brown  v. 
Kern,  6  N.  P.  68. 

15  4  Kent,  36.  The  estate  is  an 
estate  for  life.  It  commences  with 
the  death  of  the  husband,  it  ceases 
with  the  death  of  the  wife.  It  is 
not  in  the  power  of  the  widow  to 
transfer  any  interest  in  it  until  it 
lias  been  actually  assigned.  When 
it  is  assigned — when  it  is  aparted 
and  set  off  to  her  by  metes  and 
bounds.  the*n  she  may  sell  and  con- 
vey— not  before.  The  right,  the 
chose  in  action,  if  I  may  so  speak, 
is  not  assignable.  It  may  be  relin- 
quished to  him  who  has  the  next 
estate  in  inheritance  in  the  land  out 
of  which  it  is  to  be  carved,  but  can 
not  be  transferred  to  a  third  person. 
Hitchcock,  J.,  in  Miller  v.  Wood- 
son, 14  O.  518.  See  also  Douglass 
v.  McCoy,  5  0.  527:  Weaver  v. 
Gregg,  6*  0.  S.  547.     "We  are  well 


aware  that  the  right  of  dower  of 
the  wife  in  the  lands  of  the  husband 
has  been  held  by  our  Supreme  Court 
to  be  property.  It  is  property,  how- 
ever, of  a  peculiar  kind,  of  which 
there  is  no  present  enjoyment.  It 
is  both  inchoate  and  contingent. 
This  right  can  be  released  by  the 
wife  upon  any  good  and  valuable 
consideration  moving  to  the  hus- 
band :  and  if  the  husband,  for  a 
good  and  valuable  consideration, 
pledges  the  property  in  which  the 
wife  has  a  contingent  right  of 
dower,  for  the  payment  of  his  debts, 
the  wife  joining  in  the  conveyance, 
releasing  her  right  of  dower,  we 
hold  that  she  is  bound  by  such  re- 
lease." Mussey  v.  Budd,'  11  C.  C. 
553. 

"The  contingent  right  of  a  wife 
during  her  husband's  life,  to  be  en- 
dowed of  his  real  estate  at  his  death, 
is  property  having  a  substantial 
value  that  may  be  ascertained  with 
reasonable  certainty  from  estab- 
lished tables  on  mortality,  aided  by 
evidence  respecting  the  state  of 
health  and  constitutional  vigor  of 
the  husband  and  wife  respectively." 
Mandel  v.  McClave,  46  0.  S.  407. 
"The  inchoate  dower  of  the  wife  is 
not  a  lien  upon  the  land  of  the  hus- 
band, but  is  an  interest  in  it."  Jew- 
ett  v.  Feldheiser,  68  0.  S.  523. 

is  Black  v.  Kuhlman,  30  0.  S.  199. 


569 


LAW   AND   PROCEDURE   WHERE   DOWER   ASSIGNED. 


§455 


founded  on  technical  rules  of  law,  can  persuade  a  prospective 
purchaser  to  the  contrary.17 

Sec.  455.     When  inchoate  right  of  dower  not  assignable. 

This  inchoate  right  of  dower,  like  choses  in  action,  was  not 
assignable,  but  when  the  right  became  consummate  by  death, 
the  surviving  wife,  or  husband,  then  could  sell  and  convey 
his  or  her  dower  right,  though  not  yet  assigned  and  set  off.18 

Sec.  456.     Consummate  dower  unassigned  can  not  be  reached 
by  creditors  but  by  an  action  in  equity. 

Vested  dower  rights  or  an  estate  in  dower  not  yet  as- 
signed can  not  be  reached  by  levy  and  execution  on  behalf  of 
a  creditor.  The  only  way  in  which  a  vested,  unassigned  dower 
estate  may  be  reached  by  a  creditor,  is  by  a  proceeding  in 
equity  for  that  purpose.  In  such  action  the  court  will,  by 
a  proper  decree,  order  that  the  person  entitled  to  such  unas- 
signed dower  interest  convey  the  same  to  a  receiver;  that  on 
failure  to  so  convey  to  such  receiver,  the  decree  operate  as 


i"Mandel  v.  McClave,  46  0.  S. 
411:  Ketchem  v.  Shaw,  28  0.  S. 
503;  Black  v.  Kuhlman,  30  0.  S. 
196;  Unger  v.  Leiter,  32  0.  S.  210; 
Kling  v.  Ballentine,  40  0.  S.  391. 

i*Woyer  v.  Sager,  21  C.  C.  715. 
"The  law  to-day  is  not  dominated 
by  a  fear  of  maintenance  and  cham- 
perty as  it  was  when  Lord  Coke 
wrote,  and  when  'dower,  unassigned. 
can  not  be  conveyed  to  a  stranger' 
passed  into  a  proverb.  The  reason 
lias  ceased,  the  law  has  changed, 
and,  like  any  other  right  in  re 
dower,  consummate  may  now  be 
aliened.  If,  as  suggested,  the  stat- 
ute makes  no  provision  for  the  as- 
signment rf  dower  at  the  suit  of  the 
widow's  vendee,  it  will  be  remem- 
bered that  equity  has  concurrent 
jurisdiction  Vith  the  law  in  actions 
for  dower,  and  has  always  enter- 
tained jurisdiction  when  for  any 
reason  the  remedy  at  law  is  inade- 
quate." Ibid,  citing  Tiedeman's 
Eq.,  §  522.  See  Finch  v.  Finch.  10 
0.   S.   501;    Rosenthal  v.   Mayhugh, 


33  0.  S.  155;  Mandel  v.  McClave, 
46  O.  S.  407;  Boltz  v.  Stoltz.  41  O. 
S.  540;  Grant  v.  Ludlow.  8  0.  S. 
1.  But  see  14  0.  S.  518;  Todd  v. 
Beatty,  W.  460;  Fletcher  v.  Hunt- 
ington, 8  N.  P.  333.  Set  also  Doug- 
lass v.  McCoy,  5  0.  527;  Avery  v. 
Durfrees,  9  0.  147;  McMahon  v. 
Gray,  5  L.  R.  A.  748:  Strong  v. 
Clem,  12  Ind.  37;  Mitchell  v.  Win- 
slow,  2  Story,  630;  Xieholl  v.  Rail- 
road, 12  X."  Y.  121 ;  Stoughton  v. 
Forest,  4  Blackf.  379;  4  Kent's 
Com.  269;  Moon  v.  Lancaster,  W. 
35;  Ford  v.  Lanman.  W.  437; 
Weekly  v.  Hall.  13  0.  167;  Pom- 
eroy's 'Equity.  Vol.  1,  §  137:  McMa- 
hon v.  Gray.  150  Mass.  289:  Payne 
v.  Becker.  87  X.  Y.  153:  Pope  v. 
Meade.  99  X.  Y.  201.  But  in  Ro- 
senthal v.  Mayhugh.  33  0.  S.  167, 
we  find:  "A  widow,  before  dower  is 
assigned,  having  only  a  vested  right 
to  be  endowed,  can  not,  at  laic, 
convey  such  right;  she  can  only  re- 
lease  it." 


§457 


MERWINE    ON    REAL    ACTIONS. 


570 


such  conveyance,  and  that  the  receiver  proceed  by  action  to 
have  dower  assigned.19 

Sec.  457.     Inchoate  right  of  dower  released  by  order  of  court 
—When. 

The  right  of  a  mortgagor,  lienholder,  or  other  person  hold- 
ing an  incumbrance  on  real  estate,  to  have  it  sold  by  a  court 
in  a  proper  action,  free  of  the  inchoate  dower  interest  of  the 
husband  or  wife  who  had  not  released  their  dower  right  in 
such  real  estate,  is  now  fully  established  by  the  courts.  In 
such  action  the  holder  of  the  lien,  or  incumbrance,  should 
make  the  husband  or  wife  who  claims  the  inchoate  right  of 
dower,  a  party  to  the  action.  The  court  will  then  order  the 
real  estate  sold  free  of  dower  and  will  further  order  that 
there  be  paid  to  the  holder  of  such  inchoate  dower  interest, 
the  dower  thereof,  to  be  determined  by  reference  to  dower 
tables  of  recognized  authority  on  that  subject,  in  connection 
with  the  state  of  health  and  constitutional  vigor  of  the  wife 

or  husband.20 

But  if  in  such  action  to  foreclose  a  mortgage  on  real  estate 
or  enforce  a  lien  or  other  encumbrance  thereon,  in  which  the 
inchoate  right  of  dower  to  the  husband  or  wife  has  not  been 
released,  and  such  husband  or  wife  has  not  been  made  a  party 
to  the  action,  the  order  of  the  court,  selling  such  real  estate, 
will  not  operate  to  cut  out  such  dower  interest.  The  husband 
or  wife,  when  the  dower  estate  has  become  consummate,  may 
maintain  an  action  for  the  assignment  of  dower  in  such  real 
estate.  The  decree  and  sale  under  the  order  of  the  court  will 
not,  in  any  manner,  affect  their  dower  in  such  real  estate.21 


isBoltz  v.  Stoltz,  41  0.  S.  540: 
Tompkins  v.  Fonda,  4  Paige,  448; 
Davis  v.  Whittlesy,  1  McArthur, 
163;  Payne  v.  Becker,  87  N.  Y. 
153;  Aduit  v.  Moore,  7  N.  P.  320, 
affirmed  in  13  0.  C.  T).  11;  McLar- 
ren  v.  Stone,  18  C.  C.  854. 

20TJnger  v.  Leiter.  32  0.  S.  210. 
"In  a  proceeding  at  the  suit  of  sun- 
dry mortgagees  to  foreclose  their 
respective  mortgages,  it  appeared 
that  the  wife  of  the  mortgagor  bad 
united  with  her  hushand  in  the  exe- 
cution of  only  one  of  the  mortgage-, 
in  which  iIk-  had  released  her  con- 
tingent  right  of  dower.     At  the  in- 


stance of  the  mortgagee  holding 
such  release,  the  wife  was  made  a 
party  and  the  premises  were  sold, 
pursuant  to  an  order,  froe  from  her 
contingent  claim  to  dower.  Held: 
that  the  mortgagee  holding  such 
release,  is  entitled,  on  distribution, 
to  receive  the  proportionate  value 
of  such  inchoate  right  of  dower, 
though  the  net  proceeds%of  the  sale 
are  insufficient  to  satisfy  the  prior 
mortgages."  Black  v.  Kuhlman,  30 
O.  S.  100.  See  also  Gillette  v.  Mil- 
ler, 12  C.  C.  210. 

-i  Dingman  v.   Dingman,  39  0.  S. 
172.     "Where  the  wife  has  joined  in 


571 


LAW   AND    PROCEDURE   WHERE   DOWER    ASSIGNED. 


§458 


A  sale  of  land  at  a  suit  of  a  judgment  creditor  of  the  hus- 
band, brought  to  marshal  liens,  does  not  have  the  effect  to 
bar  or  foreclose  the  inchoate  dower  of  the  wife;  and  the  rule 
is  not  different,  although  the  wife  is  made  a  party  to  the 
creditor's  suit  and  is  in  default  of  answer,  when  the  judgment 
ordering  a  sale  is  entered  and  a  sale  is  made,  and  although 
a  mortgagee  in  whose  mortgage  the  wife  has  joined  releasing 
dower,  is  also  made  a  defendant  but  is  in  default  at  the  time 
judgment  is  rendered  and  the  sale  is  made.-2 

Sec.  458.  Dower  subject  to  every  infirmity  the  law  attaches 
to  the  seizin. 

It  must  be  kept  in  mind,  however,  that  while  the  right  of 
dower  attaches  to  the  real  estate  the  instant  the  seizin  of  the 
husband  or  wife  attaches  to  it,  yet  it  is  subject  to  every  in- 
firmity to  which  the  law  attaches  to  the  seizin.23 

The  right  of  dower  in  the  wife  subsists  in  virtue  of  the 
seizin  of  the  husband ;  and  this  right  is  always  subject  to  any 
incumbrance,  infirmity  or  incident  which  the  law  attaches 
to  that  seizin,  either  at  the  time  of  the  mortgage  or  at  the 
time  the  husband  became  seized.  x\  liability  to  be  divested 
by  a  sale  in  partition  is  an  incident  which  the  law  affixes  to 
the  seizure  of  all  joint  estates;  and  where  the  law  steps  in 
and  divests  the  husband  of  his  seizin  and  turns  the  realty  into 
personalty,  she  is,  by  the  act  and  policy  of  the  law,  remitted, 


a  mortgage  foreclosure  of  the  hus- 
band, she  not  being  made  a  party, 
after  his  death  she  has  the  right  to 
redeem  the  mortgage  and  then  have 
her  dower  out  of  the  property. 
Dower  inchoate  is  not  an  estate, 
but  it  is  nevertheless  a  right  or 
interest  in  land,  of  which  a  wife 
may  not  be  deprived  except  by  pro- 
ceedings to  which  she  has  been  made 
a  party."  Ketcham  v.  Shaw,  28  0. 
S.  506.  "A  widow  who,  in  the  life- 
time of  her  husband,  united  with 
him  in  a  mortgage  of  lands,  of  which 
he  was  seized  in  fee.  has,  in  equity, 
after  his  death,  a  right  to  redeem; 
and  a  foreclosure,  during  the  life 
of  the  husband,  by  suit  in  chancery, 
to  which  the  wife  is  not  a  party, 
does  not  bar  her  equity  of  redemp- 
tion."     McArthur    v.    Franklin,    15 


0.  S.  4853  citing  Denton  v.  Nanny, 
8  Barb.  S.  C.  R.  624;  Mills  v.  Van 
Vorhees,  20  N.  Y.  Rep.  415.  "A 
widow  who,  in  the  lifetime  of  her 
husband,  united  with  him  in  a  mort- 
gage upon  lands  of  which  he  was 
seized  in  fee  during  coverture,  has, 
in  equity,  a  right  to  redeem;  and 
a  foreclosure  in  the  lifetime  of  her 
busband,  to  which  she  was  not  a 
party,  does  not  divest  her  of  such 
right."  McArthur  v.  Franklin,  16 
0.  S.  193;  Parmeter  v.  Burkley,  28 
0.  S.  32:  Carter  v.  Goodin,  3  0.  S. 
76;  Kitzmiller  v.  Vanrensellaer,  10 
0.   S.   63. 

22  .Tewett  v.  Fieldheiser,  68  O.  S. 
523. 

ssGillett  v.  Miller,  12  C.  C.  212; 
Firestone  v.  Firestone,  2  0.  S.  415; 
Derush  v.   Brown,  8   O.  415. 


§§459,460 


MERWINE   ON    REAL   ACTIONS. 


572 


in  lieu  of  her  inchoate  right  of  dower  in  the  realty,  to  her 
inchoate  right  to  the  distributive  share  of  the  personalty  into 
which  it  has  been  transmitted.24 

Sec.  459.     Marriage  necessary  to  create  dower. 

One  of  the  essentials  to  create  the  right  of  dower  is 
marriage;23  and  clower  will  only  be  allowed  to  the  widow  who 
was  the  wife  at  the  time  of  the  husband's  death.20 

It  is  not  absolutely  essential  in  this  State  that  the  pan-lies 
•  desiring  to  marry  secure  a  license  or  have  a  publication  of 
bans,  and  be  married  by  a  minister,  priest  or  other  person 
authorized  to  solemnize  marriages,  in  order  to  entitle  the  hus- 
band or  wife  to  the  right  of  dower.  While  this  is  the  manner 
in  which  all  persons  should  enter  into  the  marriage  state, 
still  the  law  recognizes  another  way  by  which  the  rights,  duties 
and  legal  liabilities  incident  to  the  marriage  relation  may 
be  created.  An  agreement  between  a  man  and  woman,  believ- 
ing that  they  are  marriagable  by  law,  to  become  husband  and 
wife,  entered  into  in  good  faith,  with  continued  cohabitation 
in  that  relation  and  the  treatment  of  each  other,  not  only  be- 
tween themselves  but  in  the  community,  as  husband  and  wife, 
establishes  that  relationship,  and  they  are  as  legally  married 
as  though  they  had  been  married  by  official  ceremony  or  the 
publication    of    bans.27 

Sec.  460.     The  seizin  necessary  to  create  dower. 

The  dower  statute  provides  that  a  widow  or  widower  is 
endowed  of  an  estate  for  life  in  one-third  of  all  the  real  estate 
of  which  the  deceased  consort  was  seized  as  an  estate  of  in- 
heritance at  any  time  during  marriage,  and  one-third  of  all 
the  real  property  of  which  the  deceased  consort,  at  decease, 


2*  Gregg  v.  Weaver,  6  0.  S.  547; 
quoted  with  approval  in  Gillett  v. 
Miller,  12  C.  C.  212. 

-••Gen'l  Code,  §8600  (R.  S. 
§4188). 

26  Rice  v.  Lumly,  10  O.  S.  507; 
Scribner  on  Dower,  510. 

zTSwartz  v.  State,  13  C.  C.  62; 
DeFrance  v.  -Inlmson,  26  Fed.  Rep. 
sol:  Kemelly  v.  (Wee,  4  N.  P. 
105;  Holtz  v.  Dick,  42  O.  S.  23; 
Carmichael   v.  State,  12  O.  S.  553; 


Meeritz  v.  Insurance,  8  X.  P.  422; 
Estate  of  Barrett,  40  W.  L.  B.  222 ; 
Fergus  v.  Nash,  48  W.  L.  P..  442 ;  2 
Kent's  Com.  86;  Shelford  on  Mar- 
riage and  Divorce,  080;  Yates 
v.  Houston,  3  Tex.  433:  Hines  v. 
McDermitt,  01  X.  Y.  451:  Slate  v. 
Worthington,  23  Minn.  528;  14 
Am.  &  Eng.  Ency.  of  Law,  527. 
But  see  Duncan  v.  Duncan,  10  O.  S. 
181. 


573 


LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED. 


$•±60 


held  the  fee  simple  in  reversion  or  remainder,  and  also  in  any 
real  property  held  by  article,  bond  or  other  evidence  of  claim, 
but  dower  will  not  be  assigned  to  any  widow  or  widower  in 
any  real  property  of  which  the  deceased  consort  at  decease 
held  the  fee  simple  in  reversion  or  remainder,  until  the  termi- 
nation of  the  prior  estate.28 

The  statute  makes  three  things  necessary  for  the  inchoate 
right  of  dower  to  ripen  into  dower  consummate :  marriage, 
death  and  seizin. 29 

We  have  already  seen  what  conditions  of  fact  are  necessary 
to  constitute  a  valid  marriage  in  this  State,  and  that  a  wife 
may  have  her  inchoate,  or  contingent  dower,  paid  her  out  of 
the  proceeds  of  a  sale  of  the  husband's  real  estate  made  by 
order  of  the  court  during  his  lifetime.  There  may  be  cases 
in  which  the  law  will  presume  the  death  of  the  husband  or 
wife,  and  permit  the  survivor  to  have  dower  in  the  lands 
of  the  consort  presumed  to  be  dead,  as,  for  instance,  when  a 
man  leaves  his  home  or  his  usual  place  of  residence  and  goes 
to  parts  unknown,  and  is  not  heard  of  or  known  to  be  living 
for  a  period  of  seven  years,  the  legal  presumption  arises  that 
he  is  dead.30 

Seizin  in  law,  as  well  as  in  fact,  of  lands  owned  in  fee  by 
the  husband  during  coverture,  is  sufficient  to  endow  his  widow, 
not  otherwise  barred;  for  seizin  in  law  there  must  be  a  right 
of  immediate  possession ;  and  where  the  husband  is  vested  in 
the  remainder  estate  subject  to  a  life  estate  in  another  in 
being,  during  his  coverture,  he  has  no  right  of  immediate  pos- 


ssGen'l  Code,  §8600  (R.  S. 
§4188).  In  Wood  v.  Phillips,  2 
C.  C.  138,  when  the  statute  did  not 
provide  for  dower  in  reversion  or 
remainder  estates  as  at  present,  it 
was  held  that,  "At  common  law  it 
is  an  essential  requisite,  in  order 
that  the  widow  be  endowed,  that 
the  estate  of  the  husband  must  con- 
fer a  right  to  the  immediate  free- 
hold. Dower  is  not  allowed  in  es- 
tates in  remainder  expectant  upon 
an  estate  of  freehold,  and  hence  if 
the  estate  of  the  husband  be  sub- 
ject to  an  outstanding  freehold  es- 
tate, which  remains  undetermined 
during  tlie  coverture,  no  riffht  of 
dower  attaches."  Pcribner  on  Dower. 


217.  To  the  same  import  is  Tyler 
on  Cov.  397;  1  Washburn  Real 
Prop.  154;  4  Kent's  Com.  39.  When 
the  husband,  previous  to  his  death, 
had  only  a  reversion  in  fee,  or  a 
vested  remainder  expectant  upon 
an  estate  for  life,  his  widow  can  not 
be  endowed;  as  in  such  case  he  has 
never  had  either  possession  or  any 
right  of  possession,  he  can  not  be 
said  to  have  had  a  seizin  of  any 
sort,  either  actual  or  legal.  Du- 
ra ngo  v.  Durango,  23  N.  Y.  331; 
Eldridge  et  ah  v.  Forester  and 
Wife,   7   Mass.   352." 

29  Black  v.  Knhlman.  30  0.  S. 
204;    Conger  v.  Black,  11  O.  S.  10. 

so  Rice  v.   Lumley,   10   O.  S.   596. 


§461 


MERWLNE   ON    REAL   ACTIONS. 


57^: 


session,  is  not  seized  thereof,  and  if  he  conveys  the  same  by 
his  sole  deed  during  coverture,  his  widow  will  not  be  entitled 
to  dower  therein. :u 

To  constitute  seizin  in  fact,  there  must  be  an  actual  posses- 
sion of  land,  and  for  a  seizin  in  law,  there  must  be  a  right 
of  immediate  possession.32 

Seizin  in  fact  is  the  possession  with  intent  on  the  part  of 
him  who  holds  it  to  claim  a  freehold  interest,  Seizin  in  law 
is  a  right  of  immediate  possession  according  to  the  nature 
of  the  estate.33 

It  has  long  been  a  rule  of  law  that  possession,  or  quasi 
possession  is  prima  facie  evidence  of  property,  and  the  pos- 
session of  real  estate,  or  the  reception  of  the  rents  and  profits 
from  the  person  in  possession,  is  prima  facie  evidence  of  the 
highest  estate  in  that  property,  viz. :  a  seizin  in  fee.  The  same 
evidence  of  seizin  should  entitle  a  woman  to  recover  her  dower, 
as  would  be  sufficient  to  authorize  a  recovery  by  an  heir.  In 
such  case  the  seizin  of  the  deceased  is  proved  by  showing  his 
actual  possession  of  the  premises,  or  by  proving  his  receipts 
for  rent  from  the  person  in  possession/' 


34 


Sec.  461.     To  what  property  dower  will  attach. 

Dower  is  not  divested  in  real  estate  conveyed  by  husband 
to  defraud  his  creditors,  even  though  the  wife  joins  in  the 
deed,86  nor  is  the  wife  denied  her  right  of  dower  in  the  real 
•  state  of  her  husband  conveyed  by  him  in  fraud  of  her  rights 
before  inarriage,  but  after  he  has  entered  into  a  contract  to 
marry,38  nor  by  proceedings  to  sell  her  husband's  land  to 
enforce  ii  judgment  lien  to  which  she  is  not  a  party,37  nor 
by  taking  a  distributive  share  of  decedent's  personalty,38  nor 


si  Oliver  v.  Jones,  3  X.  P.  120. 
Oliver   v.  Jones,  :?  N.   P.   V.W-. 
1   Washburn  Real   Estate,  p.  62. 

\\ 1  v.  Phillips,  2  C.  C.   136; 

Bouvier'a  Law  Die;  Grogan  v.  Gar- 
rison, 27  0.  s.  52.  "Under  our  de- 
ns, it  is  held  that  the  seizin 
of  one  who  mal  es  a  purchase  money 
mortgage  is  technical  and  is  not  an 

PState     t  >     which     dower     attaches." 

Culver    v.     Harper,    '-'7    0.    S.    67; 
Welch  v.   Buckins,  0  0.  S.  331. 
iWard    \.    Mcintosh,    12    O.    S. 
Jackson  v.  Waltenneir,  5  Cow. 


301;  Bancroft  v.  White,  1  Caines, 
190;  Sparrow  v.  Kinsman,  1  Const. 
245. 

86  Woodworth  v.  Paige,  5  O.  S. 
71;  Ridgeway  v.  Mosting,  23  O.  S. 
294;  Ennis  v.  Ennis,  Dayton,  117. 

so  Ward  v.  Ward.  63  0.  S.  125; 
Westerman  v.  Westerman,  25  O.  S. 
500;    Miller  v.  Wilson.  15  0.  108. 

37  Dingman  v.  Dingman,  .'50  0.  S. 
172. 

ssHutehins  v.  Davis.  68  O.  S. 
168;   Barber  v.  Hite,  39  O.  S.  185. 


575 


LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED. 


$462 


in  the  proceeds  realized  from  a  lire  insurance  policy  on  her 
husband's  real  property,20  nor  by  proceeding  in  partition,  her 
husband  being  one  of  the  parceners  and  living  at  the  time 
partition  is  sought,*0  nor  from  the  surplus  arising  from  the 
sale  of  real  estate  under  a  purchase  money  mortgage,41  nor 
a  sale  of  the  husband's  lands  by  a  judgment  creditor,  the  wife 
not  being  a  party  to  the  judgment,4-  nor  where  the  wile  was 
induced  by  the  husband's  fraudulent  representations  to  sign 
a  mortgage  on  all  of  his  real  estate  for  a  large  loan,  under 
his  representations  that  it  was  only  a  deed  for  a  very  small 
portion  of  his  real  estate, 4:!  nor  where  an  assignee  sells  lands 
of  an  assignor  for  the  benefit  of  creditors,  without  any  pro- 
ceeding in  the  probate  court.44  Dower  will  attach  to  all  of 
the  equitable  estate  in  lands  held  by  the  deceased  consort  at 
the  time  of  death,4S  and  in  mines  and  quarries  opened  by  the 
husband   in   his  lifetime.46 


Sec.  462.     Lands  in  which  dower  will  not  attach. 

Dower  will  not  be  allowed  in  permanent  leasehold  estates,47 
nor  in  real  estate  conveyed  by  delivery  of  deed  to  the  officer 
taking  the  acknowledgment,  and  its  acceptance  by  the  grantee, 
but  before  he  takes  actual  possession  of  the  deed,  the  grantor 
marries.48  nor  in  the  real  estate  conveyed  by  the  wife  and  her 
husband,  which  is  supported  by  a  consideration,40  nor  where 
she  accepts  property  from  her  husband  in  lieu  of  dower  under 
the  statute,  or  by  jointure  or  post  or  ante  nuptial  contract.'" 
nor  in  real  estate  in  which  she  by  her  conduct  is  estopped 
from    asserting   her   dower   therein.51   nor   in    the    lands   of   a 


ss  Fleming  v.  Jordan,  28  W.  L.  B. 
332. 

<oGillett  v.  Miller,  12  C.  C.  209. 
See  also  Doctorman  v.  Elder,  27  W. 
L.  15.   195      But  see  in  this  eonnee 
tion.  Weaver  v.  Greeg,  0  0.  S.  547 

<i  Fox  v.  Pratt,  27  O.  S.  512; 
Culver  v.  Harper,  27  0.  S.  464. 

*2jewett  v.  Fieldheiser,  68  0  S. 
523. 

4-f  Conover  v.  Porter,  14  O.  S.  450. 

** Baldwin  v.  .lacks.  3  0.  Dec. 
Reprint,  545:  also  see  Dwyer  v. 
Gerlough,  31  0.  S.  15K,  where  sale 
by  an  assignee  did  not  operate  to 
cut  out  dower  of  wife. 

40  Smiley    v.    Wright,    2    0.    507; 


Rands  v.  Kendell,   lit  O.  671. 

■>'•  Rockel's  Complete  Ohio  Probate 
Practice,  §  949.  citing  Woerner  on 
Adm'r..   229. 

47  Oliver    v.    Jones,   3    X.    P.    129. 

48  Black  v.  Hoyt.  33  0.  S.  203. 
*?  Smith    v.    Handy.    16    0.    192; 

Mussy     v.     Budd,     II     C.     C.    552: 
Sytnmes  v.   White.  4   VV.    L.  J.  52S. 

aoGen'l  Code,  Sec  8608  ( R.  S. 
§  4 1S9  i.  See  also  Grogan  v.  Gar- 
rison. l'i  0.  S.  59;  Murphy  v.  Mur- 
phy. 12  0.  S.  407:  Smith  v  Smith, 
57  0.  S.  27;  Duttenhofer  v.  Dntten- 
hofer,   12  O.   D.   X.   P.  736. 

si  Rosenthal  v.  Mayhugh,  33  0.  S. 
166;    Brown   v.    Kerns.   0  X.   P.   68; 


§462 


MERWINE   ON   REAL   ACTIONS. 


576 


divorced  husband,   when  the   divorce  is  granted  for  her  ag- 
gression,"  nor   in   the   lands   of   a   divorced   wife,   when   the 
divorce  is  granted  for  the  husband's  aggression,53  nor  where 
the  wife  has  elected  to  take  under  the  provisions  of  her  hus- 
band "s  will  in  lieu  of  dower,54  nor  in  the  lands  of  the  husband 
sold  for  taxes,  and  this  is  true  whether  the  dower  be  inchoate 
or  vested,53  nor  in  the  lands  of  her  husband,  where  the  right 
has  become  consummate,  but  not  asserted   for  21  years  there- 
alter,5"   nor  in  real   estate   mortgaged,   the   wife   joining  the 
husband  in  the  execution  of  the  mortgage,57  nor  in  the  lands 
of   the    husband   sold    before   his   marriage,    but   not    actually 
conveyed  until   after   marriage,58  nor  in  lands   committed  to 
public  uses,50  nor  in  burial  grounds,00  nor  in  the  land  of  hus- 
band sold   to   satisfy  a   purchase   money   mortgage   in  which 
she  'lid   not   join,01  nor  in  growing  crops,62  nor  in  the  lands 
of  her  husband  as  against  a  lien  of  a  mortgage  executed  prior 
to    marriage,63   nor   in   the   realty    of   a   railroad    company   in 
which  her  husband  held  stock,64  nor  in  an  equity  of  redemp- 
tion  after    condition    broken    at   time    of    marriage,65    nor    in 
the   land   of  her  husband   as   against   a   judgment   recovered 
againsl    him   prior  to  the  marriage,66  but  where  the  husband 


Murphy  v.  Murphy,  12  0.  S.  407; 
Smiley  v.  Wright  2  0.  506;  Thomp- 
son v.  Hoop,  6  0.  S.  481;  Sweeney 
v.  Shade,  22  0.  S.  333. 

52  Gen'l  Code,  §  11093  (R.  S. 
§5700). 

Gen'l     Code,     §11990     (R.     S. 

§  5699). 

54  Gen'l     Code,     §10566     (R.     S. 

5963).       Sec     Kinkead's    Probate 

Law  and    Practice  for  discussion  of 

wli;it    constitutes  an  election,  §222, 

et  seq.;  also   R^ockel's   Probate  Law 

and   Practice,  Vol.  2.  §  1224.  n  seq. 

■■••.luii.-    v.   Jones,    8    <>.    S.   430; 

Gen'l  Code,  §  5688   (P.  S.  §2852). 

BBTuttle  v.  Wilson.  10  0.  24;  Ab- 
bott v.  Bostworth,  2  W.  L.  B.  92. 
affirmed  in  36  0.  S.  605. 

r»7  Duval  v.  Feiviger,  1  C.  S.  0. 
P. 

Chapman  v.  Chapman,  53  Am. 
St.  823; 

Gwyne  v.  Cincinnati,  3  O.  24; 
Stef4i'  v.  Board  of  Education,  31  W. 
L.   P    B4 


go   Gen'l     Code,     §10105     (R.     S. 
§3578). 

ci  Folsom  v.  Rhodes,  22  O.  S.  435. 
"The    widow    of    a    purchase-money 
mortgagor,    mortgage    given    before 
marriage,  and  property  sold  by  ex- 
ecutors to  pay  the  mortgage  debt,  is 
not  dowable  of  the  whole  proceeds, 
but  only   of   the   surplus   remaining 
after      satisfying      the      mortgage." 
Culver    v.    Harper,    27    0.    S.    4(54: 
Fox  v.  Pratt,  27  0.  S.  515;    Runner 
v.    Evans.    2    C.    C.    435;    Elliot    v. 
Platter,    43    0.    S.     108;     Unger    v. 
Leiter,  32  O.  S.  210;   Bank  v.  Hin- 
ton,  21   0.  S.  509;   Welch  v.  Buck- 
ins,  9  0.  S.  331; 

82  l);l\is    v.    Brown,   4    W.    L.    M. 
272. 

«3  Phillips  v.   Keels,  4   C.   C.   R. 
316;  Sprague  v.  Law,  17  C.  C.  735. 

64  Johns  v.  Johns,  1  C.  S.  350. 

65  Jacques     v.     Commissioners,     2 
Disn.   121. 

co  Phillipa  v.  Keels,  4  C.  C.  R.  31f>. 


577  LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED.  §  463 

mortgages  his  real  estate  and  marries,  and  then  there  is  a 
judgment  lien  taken  against  the  real  estate,  after  .his  death, 
on  distribution  of  a  f'ind  arising  from  a  sale  of  his  real  estate, 
the  wife's  dower  is  superior  to  the  judgment  creditor's  Lien.07 
A  widow  electing  to  take  the  provisions  made  for  her  in 
the  will  of  her  husband,  will  be  barred  of  dower  in  the  land 
of  which  he  was  seized  as  an  estate  of  inheritance  during 
coverture,  and  which  was  sold  and  conveyed  upon  foreclosure 
of  a  mortgage  executed  by  him  in  which  she  did  not  join, 
unless  it  plainly  appears  by  the  will  that  she  should  have  such 
provision  in  addition  to  her  dower,68  and  a  doweress  has  the 
same  rights  in  oil  wells  sunk  upon  the  lands  of  her  husband 
after  his  death  that  she  has  in  wells  sunk  before  his  death; 
and  where  the  rents  and  profits  of  a  tract  of  land  are  assign  d 
to  her.  the  oil  productions  in  that  land  are  clearly  her.j.'J 
She  will  not  be  entitled  to  dower  in  real  estate  conveyed  to 
her  by  jointure  or  given  to  her  by  her  husband  by  postnuptial 
or  antenuptial  contract. 

Sec.  463.     Jointure — Its    character    and    essential    elements — 
Postnuptial  and  antenuptial  contracts. 

The  conveyance  of  an  estate  or  interest  in  real  properly  to 
a  person  in  lieu  of  dower  to  take  effect  on  the  death  of  the 
grantor,  will,  if  accepted  by  the  grantee,  bar  the  grantee's 
right  of  dower  in  the  real  estate  of  the  grantor;  but  if  the 
conveyance  was  made  when  the  grantee  was  in  infancy,  or 
after  marriage,  the  grantee  may  waive  title  to  such  property 
and   demand   dower.70 

As  our  Supreme  Court  has  discussed  the  subject  of  jointure 
in  a  manner  that  can  not  be  improved,  we  here  quote  from 
its  language  on  this  subject : 

'"What,  then,  is  a  jointure,  under  this  statute?  It  is  a  word 
having  a  fixed  legal  signification,  long  prior  to  the  enactment 
of  our  dower  act. 

"The  section  quoted  is,  in  fact,  but  the  adoption  of  a  similar 
provision  found  in  Stat.  27,  Henry  VIII,  c.  1056,  which  en- 
acted  that    where   lands   are   settled   to   the    use   of   the   wife, 

07  Winkler  v.   Winkler,    1    Iddings  69  Wilford  v.  Heimhoffer.  2   C.   0. 

T.  R.  D.  124.  N.   S.   369. 

68  Corry  v.  Lamb,  45  0.  S.  203.  to  Qen'l      Code.      §  8608      ( R.      S. 

§4189). 


£  463  MERWINE    ON    REAL.    AtrrtONS, 


578 


'that  then,  in  every  such  case,  every  woman  having  such 
jointure  *  *  *  shall  not  have  title  to  any  dower  in  the 
residue.' 

"This  act  of  parliament  was  enacted  to  prevent  a  woman 
from  having  both  jointure  and  dower.  Before  its  passage, 
accepting  a  jointure  was  not  a  bar  to  her  action  for  dower. 

"Under  this  statute,  the  word  jointure  had  as  definite  and 
well  defined  legal  meaning  as  any  other  legal  term. 

"It  was  an  estate  made  to  the  wife  in  satisfaction  of  dower. 
Sir  Edward  Coke  says  'That  to  the  making  of  a  perfect 
jointure,  within  that  statute,  six  things  are  to  be  observed: 
(a)  It  is  to  take  effect  for  her  life,  in  possession  or  profit, 
presently  after  the  death  of  the  husband,  (b)  It  must  be 
for  her  own  life,  or  for  a  greater  estate,  (c)  It  must  be 
made  to  herself,  and  to  no  other  for  her.  (d)  It  must  be 
made  in  satisfaction  of  her  whole  dower,  and  not  of  part  of 
her  dower,  (e)  It  must  be  expressed  or  averred  to  be  in 
satisfaction  of  her  dower,  (f)  It  may  be  made  either  before 
or  after  marriage.' 

"He  adds:  'So  as  to  comprehend  all  in  a  few  words:  A 
jointure  *  *  *  is  a  competent  livelihood  of  freehold  for 
the  wife,  of  lands  or  tenements,  to  take  effect  presently  in 
possession  or  profit  after  decease  of  the  husband;  now,  as 
dower  ad  ostium  ecclesiae,  or  ex  assensu  patris,  is  better  for 
the  wife,  because,  in  respect  to  certainty,  she  may  enter,  than 
dower  at  common  law  where  she  is  driven  to  her  action,  and 
therefore  Britton  ealleth  dower  ad  ostium  ecclesiae  and  ex 
assensu  patris,  establishment  of  dower  by  the  husband,  and 
assignment  of  dower  after  his  decease  (for  nothing  that  is  uncer- 
tain is  established)  ;  so  jointure  (that  hath  the  force  of  a  bar 
of  dower  by  said  act  of  27  Henry  VIII).  is,  as  hath  been 
siiid,  more  secure  and  safe  for  the  wife  than  dower  ad  ostium 
ecclesiae  or  ex  assensu  patris,  for  besides  it  is  as  certain  as 
these  nt hers,  and  she  may  enter  into  it,  after  the  death  of 
her  husband,  and  no1  be  driven  to  her  action.'  (Coke  on  Lit., 
§41.  note  8.) 

"A  jointure  with  all  these  qualities  is  binding  on  the  widow, 
and  a  complete  bar  to  her  claim.  (1  Cruise  Digest,  title  7, 
chap.   1.   §  1!i 

"I'. nt  it  had  to  be  as  certain  as  dower  ad  ostium  ecclesiae 
or  ex  assensu  patris.  and  to  be  better  than  these;  and,  as  Coke 


579  LAW    AND   PROCEDURE   WHERE   DOWER   ASSIGNED.  §  463 

says,  more  secure  and  safe  for  the  wife  than  cither  of  these, 
or  than  dower  at  common  law.  It  had  to  be  established,  so 
the  wife  could  enter,  after  the  death  of  her  husband,  and  not 
be  driven  to  her  action. 

"It  is  said  jointure  is  to  be  as  certain  as  dower  ad  ostium 
ecclesiae  or  ex  assensu  patris.     How  certain  were  they? 

"Coke  says:  'Dowment  ad  ostium  eccledae  is  where  a  man 
of  full  age,  seized  in  fee  simple,  who  shall  be  married  to  a 
woman,  and  when  he  cometh  to  the  church-door  to  be  married, 
then  after  affiance  and  troth  plighted  between  them,  he  en- 
doweth  the  woman  of  his  whole  land  or  the  half  or  other 
lesser  part  thereof,  and  then  openly  doth  declare  the  quantity 
and  the  certainty  of  the  land  which  she  shall  have  for  her 
dower.  Here  be  two  things  that  the  law  doth  delight  in.  viz. : 
To  have  this  and  the  like  openly  done;  second,  to  have  cer- 
tainty, which  is  the  mother  of  quiet  and  repose,  and  this  word 
(moiety),  above  said  to  be  intended  of  the  half  in  certainty, 
and  not  of  the  moiety  in  common,  which  clearly  appeareth  in 
that  here  Littleton  saith  the  quantity  and  certainty  of  the 
land.'71 

"So  dower  ex  assensu  patris  must  have  the  same  quality  of 
certainty.  It  must  be  'of  parcels  of  his  father's  lands  or  tene- 
ments with  the  assent  of  his  father,  who  after  assigns  the 
quantity  and  parcels.  In  this  case,  after  death  of  the  son, 
the  wife  shall  enter  into  the  same  parcel,  without  the  assign- 
ment of  any. ' 72 

"Jointure  was  as  certain  as  dower  ad  ostium  ecclesiae  or  ex 
assensu  patris.  It  was  more  secure  and  safe  than  either 
of  these.  It  was,  like  them,  an  establishment  of  dower  by 
the  husband,  and  better  than  either  of  these,  she  might  enter 
into  it,  after  the  death  of  her  husband,  and  not  be  driven  to 
her  action.  This  was  doubtless  for  the  reason  that  it  was 
evidenced  by  a  conveyance  in  writing. 

"In  Vernon's  ease,  4  Coke.  1.  the  leading  one  on  the  subject, 
it  is  said,  'that  dower  ad  ostium  ecclesiae  and  ex  assensu  patris 
concluded  the  wife  of  her  dower,  if  she  entered  into  the  land 
so  assigned  to  her,  after  the  death  of  her  husband,  for  these 
being  in  such  form  as  the  law  requires  to  be  dowers  in  law. 
an  assignment   of  dower,  when  the  husband  was  sole   seized, 

7i  Coke  on  Lit.,  title  Dower,  §39.  72  Coke  Lit.,  title  Dower,  §40. 


§463 


MERWINE   ON    REAL    ACTIONS.  580 


can  not  be  made  of  the  third  or  fourth  part  in  common,  but 
ought  to  be  in  severalty.'73 

•At  common  law  it  was  imperative  as  a  requisite  of  dower 
that  the  husband  should  be  sole  seized. 

"Upon  estates  held  in  joint  tenancy  no  dower  would  attach.74 

"So  stringent  was  this  rule,  that  where  one  joint  tenant 
aliened  his  share,  destroying  the  possibility  of  survivorship 
and  severing  the  tenancy,  the  widow  of  the  alienor  could  not 
claim  dower.75 

"The    reason    for   this   rule    is    obvious,    and    applies   with 

equal  force   to   a  jointure. 

"The  sole  seizin  of  the  husband  was  indispensable,  because 
only  in  such  case  could  dower  be  assigned  by  metes  and 
bounds,  and  as  jointure  was  in  lieu  of  dower,  the  same  quali- 
ties as  to  the  estate  granted  necessarily  existed. 

"It  must  be  so  assigned  as  to  be  held  in  severalty  without 
an  action  at  law. 

"By  the  terms  of  our  statute  jointure  must  be  an  estate, 
•onveyed  as  jointure. 

"If  from  any  defect  it  fail  to  be  a  legal  Mr  to  dower,  and 
the  widow  elects  to  take  advantage  of  this  defect,  and  de- 
mands her  dower,  the  estate  conveyed  as  jointure  shall  cease 
and  determine. 

"In  what  sense,  then,  is  this  word  jointure  used?  It  was 
a  term  which,  for  more  than  two  hundred  years,  had  had  a 
fixed  legal  signification.  Long  prior  to  the  adoption  01  the 
act  of  27  Henry  VIII,  jointures  were  in  common  use,  and  their 
meaning  well  understood. 

"That  statute,  from  which  ours  is  almost  literally  borrowed, 
has  been  carefully  considered  in  many  reported  cases  by  the 
most  profound  jurists  of  England.  The  repeated  discussions, 
and  the  long  line  of  decisions,  growing  out  of  this  act  and 
similar  ones  in  most  of  the  States  of  the  Union,  were  doubt- 
Less  familiar  to  our  ancestors,  who  incorporated  a  like  pro- 
vision in  the  statutes  of  Ohio.  They  were  men  well  versed 
in  the  common  law,  and  especially  that  part  relating  to  real 
estate. 

"It    is    wrll    established   as   a   rule   of   interpretation,   that 

r«  i   Thomas'  Coke,  597.  "4  Kent,  37;  Coke  Lit.,  §  31b. 

u  Lit..  I  15;   1  Scribner  on  Dower, 
237. 


581  LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED.  §  463 

where  particular  words  or  phrases  have  in  law  an  acquired, 
fixed  legal  signification,  and  are  thus  incorporated  into  a 
statute,  the  legal  presumption  is  that  the  Legislature  meant 
to  use  them  in  this  legal  sense.70 

"Where  a  statute  speaks  of  a  deed,  it  must  be  taken  in  its 
technical  sense,  as  understood  at  common  law— that  is,  a 
writing  sealed  and  delivered  by  the  parties.77 

"So,  also,  where  the  word  mortgage  is  used,  it  will  be  as- 
sumed that  it  is  used  in  its  ordinary  legal  signification,  as 
well  understood  at  common  law,  and  that  the  legal  liabilities 
incident  to   it  were  understood   to   follow.78 

"Guided  by  this  rule  of  interpretation,  and  by  the  light  of 
the  authorities  and  decisions  referred  to,  we  are  led  to  con- 
clude that  the  estate  to  be  conveyed  as  jointure  must  possess 
those  prime  requisites  enumerated  by  Littleton  and  Coke, 
which  we  have  quoted— that  there  must  be  such  an  estate 
as  the  widow  can  enjoy  in  severalty.  It  must  declare  the 
'quantity  and  certainty'  of  the  lands  she  shall  have — the  'two 
things  that  the  law  doth  delight  in'— first,  to  have  it  done 
under  our  statute,  by  a  solemn  deed  of  conveyance ;  and,  second, 
to  have  'in  certainty,  which  is  the  mother  of  quiet  and  repose.' 
And  Lord  Coke  adds,  speaking  of  certainty  in  dower  at  the 
church-door,  and  commenting  on  Littleton's  text:  'This  word 
moiety  means  a  half  in  certainty,  not  of  moiety  in  common.' 

"In  Winch's  Cases,  p.  33  (London,  1657),  it  is  said,  to  be 
a  good  jointure,  a  wife  must  have  a  sole  estate,  after  the 
death  of  her  husband. 

"In  the  case  at  bar,  the  conveyance  is  fatally  defective  in 
this  prime  quality  of  certainty. 

"It  conveys  an  undivided  one-third  for  life.  The  widow 
can  not  enter  and  enjoy  in  severalty;  she  would  be  driven 
to  her  action  at  law  to  have  it  assigned  and  set  apart  to  her. 

"One  of  the  prime  reasons  for  making  a  jointure  was  to  give 
the  wife  the   right,   without  her   action  to  enter  and   be  sole 


'  '  7!) 


possessor. 

In  another  case,  the  agreement  in  controversy  was  that  the 
property  both  real  and  personal  of  each,  being  about  equal  in 

TcTurney  v.    Yeoman,    14    Ohio,           "Per   Scott,   J.,   Medical    College 

207.  v.  Ziegler,   17  Ohio  St.  521. 

77  Moore's  Lessee     v.     Vance,     1           79  Grogan   v.    Ciarrison,    27    0.    S. 

Ohio,   nt.  5fl. 


§  463 


MERWINM    ON    REAL,    ACTIONS.  582 


value,  should  be  brought  together,  and  enjoyed  during  cover- 
ture,  and  at  the  termination  thereof,  the  personal  property 
should  be  separated  and  divided  between  the  survivor  and  the 
representatives  of  the  intestate,  and  the  survivor  should  hold 
his  or  her  said  property,  real  or  personal,  and  should  there- 
after have  no  right  or  interest  in  the  property  of  the  intestate, 
by  reason  of  said  coverture.  This  contract  had  been  per- 
formed by  the  parties  during  coverture,  and  after  the  decease 
of  the  husband,  the  wife  claimed  and  received  from  the  per- 
sonal representatives  of  her  husband's  estate  her  share  of 
the  property  and  the  benefit  of  all  of  the  provisions  of  the 
contract  in  her  favor.  It  was  decided  that  this  contract  did 
not,  of  itself,  preclude  the  wife  from  dower  as  provided  in 
the  jointure  statute  above,  but  the  court  held  that  an  ante- 
nuptial agreement,  not  within  the  statute,  can  not,  in  this 
State,  constitute  a  bar  in  a  proceeding  at  law  by  writ  of 
dower.  It  is  obvious  that,  in  equity,  the  petition  can  only 
be  allowed  upon  the  law  and  equity  of  the  case  being  made 
to  appear  in  favor  of  the  petitioner,  and  that  a  defense  which 
successfully  denies  and  disproves  all  equity  in  favor  of  a 
petitioner  for  dower,  necessarily  constitutes  a  good  defense, 
when  the  proceeding  is  in  a  court  of  equity.80 

It  was   said  by   Sutliff,   J. : 

"Dower  is  said  to  be  one  of  the  three  things  favored  in 
law.  and  it  is  certain  that  at  common  law  the  widow  could 
not  he  barred  of  her  dower  by  an  assignment  or  assurances 
to  her  of  other  lands  or  rents  issuing  out  of  other  lands  than 
those  of  which  she  was  dowahle  (except  in  the  case  of  dower 
ml  ostium  ecclesaie,  or  ex  assensu  patris),  whether  the  assign- 
ment or  assurance  was  made  by  the  husband  before  or  after 
tlie  marriage.  This  arose  probably  from  the  consideration  that, 
lommoD  law.  no  righl  can  be  barred  until  it  accrues,  and 
that  a  righl  or  title  to  an  estate  of  freehold  cannot,  at  common 
law.   be   barred   by  a   collateral   satisfaction. 

"By  the  common  law.  in  England,  the  wife  was  only  en- 
dowed of  tlie  third  part  of  such  lands  and  tenements  as  the 
husband  was  seized  of.  at  the  time  of  marriage,  unless  at 
the  time  of  the  marriage  he  especially  promised,  before  the 
priest,   to   endow   her  of  his   future  acquisitions.     But  if  the 

<">  Murphy    V.    Murphy.    12    O.    S.  407. 


5rfo  LAW    AMI    PROCEDURE    WHERE    DOWER   ASSIGNED.  §  iG'-i 

husband,  at  the  time  of  .the  marriage,  had  no  lands,  an  en- 
dowment at  the  time  of  the  espousal,  in  goods,  chattels  or 
money,  by  him  was  a  bar  to  any  claim  of  dower  on  her  part 
to  lands  which  he  might  afterward  acquire.  The  endowment 
so  made  by  the  husband,  in  goods,  chattels  or  money,  seems 
to  have  been  regarded,  in  the  absence  of  lands  on  his  part, 
as  accepted  by  her  in  stead  of  her  dos  rationabilis,  or  a  third 
part  of  lands  by  him  at  the  time  held.  Therefore  the  common 
law  rule  applied,  the  same  as  if  she  had  been  actually  endowed 
of  lands,  at  the  time  of  the  marriage;  and  she  could  not  in  the 
absence  of  a  special  engagement  so  made  by  the  husband  to 
endow  her  of  his  after  acquired  lands,  claim  dower  therein. 
And  although  Glanville,  and  other  old  writers,  speak  of  such 
an  endowment  in  goods,  chattels  or  money,  before  or  at  the 
time  of  marriage,  as  being  a  bar  of  any  dower  in  after  acquired 
hinds,  it  would  be  certainly  more  correct  to  say.  no  right  of 
dower  in  the  after  acquired  lands,  in  such  a  case  ever  existed 
at  common  law.  Indeed,  to  allow  such  an  endowment  in 
goods  or  money  to  be  pleaded  in  bar  of  a  common  law  right 
of  dower  after  accruing  to  the  woman,  when  claimed  by  her, 
would  certainly  be  in  contravention  of  the  common  law  maxims 
mentioned.  For  if  the  right  to  be  endowed  of  future  acquired 
lands  could  arise  at  common  law,  such  right  did  not  exist  at 
the  time  of  so  being  endowed  of  personal  property;  and  such 
endowment  of  goods,  etc.,  if  pleaded  as  satisfaction  of  such 
after  accruing  dower  estate  in  the  lands  would  be  only  a 
collateral  satisfaction.  And  hence,  while  dower  was  only 
claimed  and  assigned  at  law  under  writs  of  dower  in  England, 
the  widow  could  only  be  barred  of  her  right  of  dower  by  elope- 
ment, divorce,  treason  of  the  husband,  and,  perhaps,  by  hus- 
band and  wife  levying  a  fine,  or  suffering  a  common  recovery; 
or,  by  detaining  the  title  deeds  or  evidence  of  the  estate  from 
the  heir,  until  she  restore  them. 

"A  jointure,  which  is  defined  by  Sir  Edward  Coke  to  be 
'a  competent  livelihood  of  freehold  for  the  wife,  of  lands  and 
tenements,  to  take  effect,  in  profit  or  possession,  presently 
after  the  death  of  the  husband,  for  the  life  of  the  wife  at  least,' 
was  not  at  common  law  a  legal  bar  to  the  widow's  claim  of 
dower;  but  only  became  a  bar  by  force  of  the  statute  of  uses 
(27  Hen.  YITT,  eh.  10,  §6),  providing,  anions  n'-hev  things, 
that  where  lands  had  been  settled  to  the  use  of  the  wife,  etc., 


§463  MERWINE    ON    REAL   ACTIONS.  584 

for  her  .jointure  'that  then,  in  every  such  case,  every  woman 
married  having  such  jointure  made  or  hereafter  to  be  made, 
shall  not  claim  nor  have  title  to  have  any  dower  of  the  residue 
of  the  Lands,  tenements  or  hereditaments,  that  at  any  time 
were  her  said  husband's,  by  whom  she  hath  any  such  jointure; 
nor  shall  demand  nor  claim  her  dower  of  and  against  them 
that  have  the  lands  and  inheritances  of  her  said  husband; 
bul  if  she  have  no  such  jointure,  then  she  shall  be  admitted 
and  enabled  to  pursue,  have  and  demand  her  dower  by  writ 
of  dower  after  the  due  course  and  order  of  the  common  law 
of  this  realm;  this  act  Of  any  law  or  provision  made  to  the 
contrary  thereof  notwithstanding.'  This  statute,  being  in  dero- 
gation of  the  common  law.  had  to  be  strictly  construed;  and 
dialer  it  no  plea  in  bar  was  admitted  not  allowable  at  common 
.aw.  which  did  not  fall  clearly  within  the  statute. 

"No  antenuptial  agreement,  then,  not  falling  within  the 
statute,  however  beneficial  and  valuable  to  the  wife,  could, 
by  force  of  tins  statute,  in  England,  constitute  a  bar  to  the 
widow's  demand  of  dower  at  law  by  writ  of  dower.  It  was 
only  at  a  much  later  date  than  this  statute  (27  Hen.  VIII, 
ch.  10),  that  courts  of  equity,  in  analogy,  as  is  said,  to  this 
Btatutory  defense  at  law,  allowed  equitable  jointures,  and 
beneficial  antenuptial  contracts  to  be  set  up  as  a  defense  to 
proceedings  by  petition  in  chancery,  by  the  widow,  for  her 
dower.  Hut  the  earliest  reports  o\'  cases  adjudged  in  the  court 
(>\'  chancery  are  in  the  reign  of  Charles  the  First;  being  after 
the  enacting  o\'  this  statute.  And  it  is  not  probable  that  pro- 
ceedings were  entertained  for  dower,  in  that  court,  until  a 
somewhal  later  date. 

'In  the  case  o\'  Daniler  v.  Daniler,  a  proceeding  in  chancery 

on  petition  for  dower  in  lTlti,  the  lord  chancellor  allowed  an 

antenuptial   agreement   ai.d   an  equitable  jointure  to  be  shown 

i  by  the  heir,  the  defendant,  as  a  defense  to  the  claim  set  forth 

in  the  petition.       1    Vern.  7'24A 

"And  .'is  late  as  in  the  ease  of  Mundy  v.  Mundy  l  in  lIT'.^I 
2  Ves.,  §  122),  i he  lord  chancellor,  in  overruling  a  demurrer 
for  that  the  proceeding  for  dower  was  in  equity  instead  of 
at  law.  said,  'if  a  Legal  title  such  as  dower  is  controverted,  it 
must  be  made  out  at  law.  but  this  court  will  act  in  aid  of 
the  title.'  etc.  And  the  court  remarked  that  the  proceeding 
was  s,»   general   in  equity   as   to  almost   put  an   end  to  writs 


'^:> 


LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED  §  463 


of  dower.  And  from  the  time  applications  for  dower  were 
made  in  England  by  petition  in  equity,  these  equitable  defenses 
have  there  been  entertained.     *     *     * 

"Now,  inasmuch  as  it  is  a  rule  that  statutes  'are  not  pre- 
sumed to  make  any  alteration  in  the  common  law,  farther  or 
otherwise  than  the  act  does  expressly  declare'  (Broome,  28), 
under  this  act  of  1805,  no  bar  could  be  pleaded  to  the  writ 
of  dower,  the  common  law  action,  except  matter  constituting 
a  bar  at  common  law,  or  matter  constituting  by  the  express 
language  of  the  statute.     But  an  antenuptial  agreement  not 
admitted  at  common  law,  and  not  being  an  estate  conveyed 
to  the  woman  as  a  jointure  in  lieu  of  her  dower,  to  take  effect 
immediately  on  the   death   of  her  husband,   and  to   continue 
during  her  life,  would  not  be,  by  the  express  provision  of  tfce 
statute,  a  bar  to  the  right  of  dower.     Such  antenuptial  agree- 
ment,   therefore,   however    evidently   intended   to    be    in   lieu 
of  dower,  not  being  a  bar  at  common  law,  and  not  falling 
within  the  express  provision  of  the  statute  could  not  be  pleaded 
in  bar.     It  would  fail  to  be  a  legal  bar,  through  the  defect, 
or  want   of  correspondence   to  the   express  provision  of  the 
statutory    law;    and    the    same    would,    therefore,    upon    the 
widow's   demanding   and   receiving   her   dower,    by   force   of 
said  Section  5,  of  the  act  of  1805,  cease  and  determine.     *   * 

"This  section  of  the  law  of  1824  was  the  first  law  authorizing 
proceedings  in  this  State,  by  petition  in  chancery,  by  the 
widow,  to  obtain  her  dower.  This  provision  gives  her  the 
additional,  if  not  the  exclusive  right  of  petition  in  chancery 
to  obtain  her  right  of  dower.  And  it  matters  not  whether  the 
provision  was  intended  to  afford  her  an  appropriate  remedy, 
by  petition  in  equity,  to  obtain  her  right  of  dower  in  equitable 
estates  allowed  by  section  one  of  the  act,  as  cumulative  to 
her  common  law  right  of  writ  of  dower,  or,  whether  it  was 
designed  as  an  exclusive  mode  of  procedure,  and  so  intend"  d 
to  supersede  the  common  law  action  of  writ  of  dower.  The 
latter  has  been  the  construction  which  this  section  of  the 
statute  seems  to  have  pretty  generally,  if  not  universally, 
received.  And  it  is  believed  that  few,  if  any,  writs  of  dower 
have  been  issued  under  this  act  of  1824. ' ' 81 

A  deed  made  by  the  husband  and  accepted  by  the  wife,  con- 
veying to  her  real  estate,  reasonable  in  amount  and  value  and 

si  Murphy    v.    Murphy,    12    0.   S.      407. 


§  463  MERWINE   ON    REAL    ACTIONS.  586 

in  consideration  that  she  release  as  widow  all  claims  against 
his  estate,  and  the  husband  afterward  dies  iiltestate,  owning 
other  real  estate  in  which  she  is  entitled  to  dower  under  the 
statute,  the  widow  may,  at  his  death,  elect  to  waive  the  pro- 
vision made  for  her  in  the  deed  and  claim  her  dower.  She 
can  not  claim  both.82 

A  parol  agreement  between  husband  and  wife,  on  their  sepa- 
ration, made  on  terms  that  are  just  and  fair  to  the  wife  and 
fully  executed,  whereby  the  wife  agrees  to  relinquish  all  claim 
to  a  distributive  share  in  the  husband's  personal  estate,  ip 
case  she  survive  him,  will  be  enforced  in  equity.83 

And  "where  a  postnuptial  agreement,  reasonable  in  itself,  is 
fairly  made  between  husband  and  wife,  wherein  it  was  agreed 
that  they  should  henceforth  live  separate;  that  she  should 
not  claim  dower  in  his  lands,  and  would  support  herself  and 
three  of  their  children  without  charge  to  him,  in  considera- 
tion whereof  he  would  cause  to  be  conveyed  to  her  in  fee 
rimple,  for  her  separate  use,  a  specified  portion  of  his  farm, 
and  such  agreement  has  been  executed  by  the  wife,  and  no 
rights  of  creditors  or  of  bona  fide  purchasers  without  notice 
intervene,  and  he  dies  without  causing  the  conveyance  to  be 
made,  such  conveyance  will  be  decreed  in  equity  to  be  made,  as 
against  the  heirs  of  the  husband  and  those  claiming  under  them 
with  notice  of  her  rights."  81 

Equity  will  enforce  a  separation  agreement,  whereby  the 
husband  gave  to  the  wife  certain  real  estate  and  money,  and 
both  in  consideration  thereof  agreed  that  "each  party  release 
any  and  all  claim,  right,  title  or  interest,  either  vested  or  con- 
tingent in  or  to  any  property,  present  or  future,  acquired 
belonging  to  the  other."  This  language  had  the  force  to 
enable  the  husband,  while  the  wife  lived,  to  dispose  of  his 
property  without  the  assent  of  his  wife.85 

The   following  antenuptial   contract  was   held   insufficient  to 

82  Spang] er  v.  Dukes,  39  0.  S.  642.  257:    Pinney  v.    Fellows,    15  Vt.   R. 

83 Miller  v.  Miller,  16  0.  S.  531;  525;   Livingston  v.  Livingston,  2  J. 

Thomas    v.    Brown,    10    0.    S.    247;  Ch.    R.    537:    Liles    v.    Fleming,    1 

Boughton  v.  Houghton,  14  [nd.  505;  Del).  Eq.  R.  185;  Garlick  v.  Strong, 

Dellinger's    Appeal,  35    Pa.   St.  257.  3   Paige,  440;    Wood  v.  Warden,  20 

But    see    Finch    v.    Finch,    10   O.   S.  0.   R.   518;    Shepard   v.    Shepard,  7 

501  :  Mansfield  v.  NTcIntyre,  10  0.  29.  J.  Ch.  R.  57. 

84  Thomas  v.  Frown.  10  0.  S.  217.  85  Smith    v.    Smith,   57    <).    S.   27. 

See   also   St.   John    v.    St.    John,    11  See     also     Duttenhofer     v.    Dutten- 

Ves.   520;    Bettle    v.    Wilson,    14    O.  hofer,  12  P.  D.  N.  P.  736. 


587 


LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED.  §463 


prevent  the  widow,  after  the  husband's  death,  from  asserting 
dower  in  his  real  estate : 

"That  the  parties  mentioned  (husband  and  wife)  have 
mutually  agreed  to  join  in  the  bonds  of  wedlock,  and  that 
the  said  T.  J.  agrees  to  pay  or  secure  to  be  paid,  out  of  his 
estate,  by  his  executors,  after  his  demise,  the  sum  of  $700, 
in  two  years  after  his  demise,  and  she  accepts  that  in  lieu  of 
expectancy  of  dower  in  my  estate.  Now,  if  the  said  Mrs.  H. 
should  be  called  off  this  stage  of  action  before  the  said  T. 
J.,  then  in  that  event  this  obligation  will  be  void;  otherwise 
will  be  in  full  force.  Also  the  said  Mrs.  H.  agrees  to  sign  all 
deeds  and  conveyances  said  T.  J.  may  wish  to  make  during 
his  lifetime;  and  further,  whatever  the  said  Mrs.  H.  brings 
with  her  to  said  T.  J.'s  home,  to  be  taken  away  after  his 
decease."  80 

Antenuptial  contracts  between  husband  and  wife  have  al- 
ways been  enforced  in  the-  United  States  and  England.  The 
law  favors  them  because  they  tend  to  promote  marital  hap- 
piness by  removing  one  of  the  frequent  causes  of  domestic 
difficulty;  and  although  such  an  agreement  may  not  constitute 
what,  in  law,  may  be  technically  called  a  legal  jointure  under 
the  statute,  it  will  still,  in  chancery,  operate  as  an  equitable 
jointure.87 


86  Johnson  v.  Johnson,  1  C.  C. 
5-22. 

&-  Stilley  v.  Folger,  14  0.  G50. 
"Indeed,  we  think  it  may  be  con- 
sidered as  well  settled,  at  this  day, 
that  almost  any  bona  fide  and  rea- 
sonable agreement,  made  before 
marriage,  to  secure  the  wife  in  the 
enjoyment  of  either  her  own 
separate  property,  or  a  portion  of 
that  of  her  husband,  whether  dur- 
ing the  coverture  or  after  his  death, 
will  he  carried  into  execution  in  a 
court  of  chancery.  Though,  for 
many  purpose-;,  by  the  marriage,  the 
legal  existence  of  the  wife  is  merged 
in  that  of  her  husband,  the  law  rec- 
ognizes her  legal  and  separate  iden- 
tity and  her  separate  rights:  and 
she  may  preserve  the  one  and  en- 
force the  other,  in  contracts  of  this 
character. 

"It  is  said  that  courts  of  law  are 


hampered  by  rigid  rules,  and  that 
such  agreements  were  never  bars  at 
law,  unless  they  possessed  the  requi- 
sites of  a  jointure,  under  the  stat- 
ute of  27  Henry  VIII,  ch.  10.  This 
is  of  little  consequence  to  be  deter- 
mined in  this  case.  It  is  certain, 
however,  the  statute  of  uses  was 
never  in  force  in  this  State,  and 
that  courts  of  equity  here  derive 
no  authority  from  its  provisions, 
to  set  up  those  arguments  in  bar  of 
dower.  It  is  equally  certain  that 
there  have  been  repeatedly  enforced 
in  the  courts  of  our  sister  States, 
equitable  jointures,  though  they  did 
not  afford  a  competent  livelihood  of 
freehold  for  the  wife,  of  lands  and 
tenements,  to  take  effect  presently 
after  the  death  of  the  husband. 
Lord  Coke  defines  a  jointure  in  1 
Ins.  36. 

"In  New  York,  where  the  statute 


§  464  MERWENTE   OX    REAL    ACTIONS.  588 

Sec.  464.     Right  of  dower  in  partnership  realty. 

As  to  what  are  the  rights  of  the  heirs  and  widow  of  a  de- 
ceased partner  in  the  real  estate  held  by  the  partnership  at 
the  time  of  the  deceased  partner's  death,  is  a  matter  that  has 
been  frequently  before  the  courts  for  determination,  and  it 
is  still  a  matter  of  some  perplexity,  but  it  is  now  well  settled 
that  whatever  real  estate  is  purchased  with  partnership  funds, 
the  equitable  estate  accrues  to  the  partnership,  whether  the 
legal  title  be  conveyed  to  the  partners  as  individuals,  or  to 
either  of  them,  or  to  a  stranger;  and  in  such  cases,  upon  the 
death  of  the  person  holding  the  legal  title,  it  descends  to  his 
heir  at  law  in  trust  for  the  benefit  of  the  partnership — at  least 
to  the  extent  that  it  may  be  needed  to  satisfy  demands  against 
the  partnership,  whether  such  demands  exist  in  favor  of  a 
stranger  or  members  of  the  co-partnership.  After  all  the 
partnership  liabilities  are  paid  and  satisfied,  then  the  widow 
has  her  right  of  dower  in  the  partnership  realty  held  and 
owned  by  the  partnership  of  which  her  deceased  husband  was 
a  member.  Where  real  estate  is  purchased  with  partnership 
funds,  or  put  otherwise  in  the  partnership  stock,  to  be  used 
and  held  solely  for  partnership  purposes,  under  the  terms  of 
the  partnership  articles,  the  real  estate  is  regarded  as  con- 
verted out  and  out  into  personalty,  so  that  the  heir-at-law  or 
widow  take  no  beneficial  interest  therein  in  any  event,  but 
the  proceeds  not  needed  for  partnership  purposes  pass  to 
the  personal  representatives  of  the  co-partners.88 

of  uses  has  been  copied  and  adopted,  1HS,    §2),   though   the  terms   of   an 

it  lias  been  held  that  any  agreement  antenuptial    arrangement    may    not 

between   adults,   for   pecuniary   pro-  fall  within   the   technical   definition 

vision,     to     be     admitted,     neither  of  a  jointure,  if  consistent  with  the 

charged  upon  the  lands  of  the  hus-  rules  laid   down,   no   reason   is   per- 

band  nor  to  take  effect  immediately  ceived  by  us  why  it  may  be  viewed 

after   his    death,    nor   equal    to    the  in    chancery    as    a    good,    equitable 

right  of  dower,  in  value,  if  reason-  jointure."      Stilly  v.    Folger,    14    0. 

abie,    under    all    the    circumstances,  650.      See  also  Phillips  v.   Phillips, 

i-   a    good,   equitable   jointure.      In-  14  0.  S.  314:  Williams  v.  Williams, 

deed,    it    is    said,    in    one    excellent  3  W.  L.  M.   152. 

work    on    real     property,    that,    in  88  Ramelsberg  v.    Mitchell,    29   0. 

equity,   any   provision    which    a    wo-  S.    43.      "Where    partners    manifest 

I,     accepts    before    marriage,    in  an  intention  to  hold  land  as  partner- 

isfaction  of  a  dower,  as  a   trust  ship    stock,    and    sell     it    as    such, 

estate,  or  a  mere  personal  covenant  dower   can   not  be  claimed   in    such 

for   money   to   be   paid   by   the   bus-  lands   to   the   prejudice   of    partner- 

band,    i-    a    good    jointure.      1    Tlib-  ship  creditors."     Sumner   v.  Hamp- 

bard's   Real  Prop.  108.  son.  8  0.  328. 

•  I'mler  our   own   statute    (Swan,  "Real     property    purchased    with 


589 


LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED. 


§465 


In  this  connection  it  may  be  said  that  when  land  is  sold 
under  order  of  court  in  pursuance  of  law,  any  surplus  remain- 
ing after  the  purpose  for  which  it  is  sold  is  satisfied  is  re- 
garded as  real  estate. S9 


Sec.  465.     The  widow's  right  of  dower  when  there  are  con- 
flicting claims  and  liens. 
Most  of  the  difficulties  between  a   claimant   for  dower  and 
other  conflicting  liens,  grow  out  of  the  fact  that,  many  times, 
we  lose  sight  of  two  important  facts  in  connection  therewith. 


partnership  funds  and  used  for  part- 
nership purposes,  is  thereby  equi- 
tably converted  into  personalty,  and 
continues  to  be  such  after  the  deatli 
of  one  of  the  partners  and  the  dis- 
c  intinuance  of  the  business,  and  un- 
til there  has  been  a  complete  settle- 
ment of  the  affairs  of  the  firm  and 
final  division  of  assets."  Fisher  v. 
Lang.  19  W.  L.  B.  139,  where  will 
be  found  a  discussion  of  the  follow- 
ing cases:  Green  v.  Green,  1  0. 
535:  Sumner  v.  Hampson,  8  0.  364; 
Green  v.  Graham,  5  0.  264;  Ludlow 
v.  Cooper,  4  0.  S.  1 :  Ramelsberg 
v.  Mitchell,  29  0.  S.  53. 

"In  the  case  of  lands  held  in  com- 
mon, at  law,  the  several  interests 
of  the  owners  are  definite  and  as- 
certained. In  the  case  of  partner- 
ship property,  the  several  shares  of 
each  partner  is  the  residue  of  in- 
terest after  the  debts  of  the  firm 
are  paid  and  the  claims  of  the 
other  partner  are  satisfied,  but  this 
doctrine  does  not  apply  to  partner- 
ships in  real  estate,  where,  by  the 
express  agreement  of  the  parties, 
the  land  is  to  be  conveyed  into  per- 
sonalty, and  the  share  which  each 
party  is  to  receive  is  to  be  ascer- 
tained from  the  amount  of  money 
for  which  the  land  shall  be  sold." 
Ludlow  v.  Cooper.  4  0.   S.  9. 

In  Kinkead's  Probate  Law  and 
Practice,  at  §211.  this  subject  is 
carefully  discussed.  This  author 
and  jurist  says:  The  consensus  of 
judicial  opinion  is  that  partnership 
real  propertv  retains  its  ehnra^tor 
as  realtv.  with   all   the  incidents  of 


that  species  of  property,  but  i>  im- 
pressed with  a  trust,  or  that  the 
interest  of  the  heirs  and  widow  in 
such  lands  is  impressed  with  a 
trust;  that  the  realty  shall  lie  first 
applied  to  the  liquidation  of  the 
partnership  obligations;  that  such 
property,  whether  purchased  by  the 
partners  under  an  express  stipula- 
tion that  the  same  shall  be  com- 
mitted to  partnership  purposes,  or 
even  where  there  is  no  special  agree- 
ment, but  the  purchase  price  comes 
from  the  partnership  funds,  and  the 
property  is  used  by  the  firm,  will 
be  treated  in  equity  as  personalty 
until  it  has  performed  all  its  func- 
tions to  the  partnership,  and  there- 
by ceases  to  be  any  longer  partner- 
ship property.  L'ntil  then  it  is  not 
subject  to  either  dower  or  inherit- 
ance, but  after  all  the  purposes  of 
the  partnership  have  been  thus  ac- 
complished, whatever  remains  passes 
to  the  widow  and  heirs,  citing:  Dar- 
row  v.  Calkins.  154  X.  Y.  503:  61 
Am.  St.  Rep.  637;  Brady  v.  Kreu- 
ger,  8  S.  Dak.  464:  59  Am.  St.  Rep. 
771;  Woodward-Holmes  v.  Nudd,  58 
Minn.  236:  49  Am.  St.  Rep.  503: 
Robinson  Bank  v.  Miller.  153  111. 
244:  46  Am.  St.  Rep.  883:  Galbraith 
v.  Tracy.  153  111.  54:  46  Am.  St. 
Rep.  867. 

89  Kinkead's  Probate  Law  aid 
Practice.  §211.  citing  Pomeroy  Eq. 
Jur.  §1167:  Gen'l  Code.  §10816  (~R. 
S.  §  6171 :  Griswold  v.  Frink.  22  0. 
S.  79.  Tn  this  connection  see  In  re 
Davis,  21  C.  C.  720.  affirmed  in 
Hutching  v.  Davis.  68  0.  S.  160. 


§466 


MERWINE   ON    REAL    ACTIONS. 


590 


The  firct  of  these  is.  that  when  a  wife  or  husband  signs  a 
mortgage  or  other  instrument  releasing  dower,  this  release 
inures  only  to  the  benefit  of  the  person  to  whom  such  mort- 
gage is  given,  and  not  to  other  lienholders  and  incumbrances; 
and  secondly,  that  the  wife  is  entitled  to  dower  in  all  of 
the  husband's  real  estate,  no  matter  what  debts,  judgment- 
liens  or  incumbrances,  to  which  she  is  not  a  party,  may  stand 
against  such  real  estate.00 

Sec.  466.     Widow's  right  of  dower  in  partition  proceedings. 

As  stated  above,  the  right  of  dower  to  the  widow  subsists 
bv   virtue    of   the    seizin    of   the    husband,   and    a    liability   of 


'■'■  Kling  v.  Ballentine.  40  C.  S. 
394;  Mandell  v.  McClave,  40  0.  S. 
407;  Ketehum  v.  Shaw,  28  O.  S. 
503;  Ketznuller  v.  Van  Rensellaer, 
10  O.  S.  03.  But  see  Bank  v.  Hin- 
ton,  12  O.  S.  503:  Hawley  v.  Brad- 
ford, 9  Paige,  200:  Belie  v.  New 
York.  10  Paige,  49.  When  the  wife 
joins  in  the  execution  of  two  mort- 


Snodgrass,  8  O.  S.  235.  "Where  the 
owner  of  land  executes  a  mortgage 
in  which  the  wife  does  not  join,  and 
afterwards  another  mortgage  to  se- 
cure his  debt,  in  which  his  wife  does 
join,  and  afterwards  suit  to  fore- 
close the  first  mortgage  is  instituted 
in  which  the  wife  and  second  mort- 
gagee are  made  parties,  but  fail  to 


and     there     are     subsequent       appear,    and    the    property    is    sold 


gages, 

judgment  creditors,  and  the  prop- 
erty is  sold,  the  wife  is  entitled  to 
dower  in  the  fund  after  the  satis- 
faction of  the  mortgages.  Mandell 
v.  McClave,  46  O.  S.  407.  But  she 
is  not  entitled  to  dower  on  sale  of 
property  on  which  there  is  a  pur- 
chase-money mortgage,  in  which  she 
did  not  join  until  after  the  mort- 
gage- is  satisfied.  Culver  v.  Harper. 
27  O.  S.  404;  Fox  v.  Pratt,  27  O.  S. 
512.  Judgment  creditors  can  not 
defeat  dower  of  wife.  Sprague  v. 
Law,  17  C.  C.  735:  Taylor  v.  Fow- 
ler, ISO.  567. 

As  In  wife's  rights  under  mort- 
gage describing  real  estate  other 
than  that  conveyed,  see  Davenport 
v.  Widow,  0  O."  S.  466.  Where  a 
mortgage  was  executed  by  husband 
and  wife,  and  after  the  husband's 
death  his  administrator  begins  suit 
to  sell  real  estate  making  the  mort- 
gagor, who  dues  nut  answer,  and  the 
wife  parties,  is  assigned  dower  in  the 
real  estate  covered  by  the  mortgage, 
it  was  held  that  the  mortgagor  could 
not  sell  the  real  estate  under  forc- 
clcsure  of  his  mortgage.     Affleck  v. 


under  order  of  sale  in  such  proceed- 
ings, and  the  proceeds  distributed 
to  pay  costs  and  the  first  mortgage, 
such  second  mortgagee  receiving 
nothing  therefrom,  nor  any  payment 
on  his  claim  from  any  source  until 
after  fifteen  years,  his  claim  is 
barred  by  the  statute  of  limitations, 
and  if  the  wife  of  the  mortgagor  as'  s 
dower  in  such  land  he  is  held  to 
be  entitled  to  dower  therein."  Cole 
v.  Mathews.  38  W.  L.  B.  223.  Where 
a  wife  joins  the  husband  in  a  mort- 
gage on  real  property,  in  which  she 
has  a  dower  interest  and  which  is 
sold  on  foreclosure,  for  more  than 
the  mortgage  debt,  she  is  dowable 
of  the  entire  proceeds  of  the  sale." 
Society  v.  Drake.  10  C.  C.  50.  As 
to  the  rights  of  a  widow  again«1  a 
purchaser  under  mortgage  foreclo- 
sure in  which  she  did  not  join, 
see  McArthur  v.  Franklin.  16  0.  S. 
193.  See  also  Taylor  v.  Fowler,  18 
O.  507:  Sprague  v.  Law,  17  C.  0. 
7:!."i.  As  to  real  estate  covered  by 
vendor's  lien,  see  Unger  v.  Leiter, 
32  0.  S.  'J  Id:  McArthur  v.  Porter, 
1    0.  99. 


591 


LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED. 


§467 


the  husband  to  be  divested  of  his  interest  in  his  real  estate 
by  a  sale  in  partition,  is  one  of  the  incidents  of  his  seizin, 
and  the  inchoate  or  contingent  right  of  dower  of  the  wife 
is  subject  to  this  incident.  When  a  sale  of  such  real  estate  is 
made,  the  right  of  the  wife  to  dower  exists  in  the  fund  derived 
from  such  sale.'" 


Sec.  467.     When   homestead  may  be  allowed  in   addition  to 
dower. 

AY  here  the  widow  joins  with  her  children  in  an  agreement 
under  which  the  homestead  is  sold  to  turn  over  the  proceeds 
of  the  sale  to  the  administrator  of  the  deceased  husband  and 
father,  and  by  him  applied  to  the  payment  of  a  mortgage 
lien  on  said  homestead,  in  the  execution  of  which  the  widow 
had  joined  her  deceased  husband,  it  was  held  that  she  was 
entitled  to  the  five  hundred  dollars  in  lieu  of  a  homestead  as 
provided  by  the  statute,92  and  also  her  dower  therein.93 

Sec.  468.     Widow  may  redeem  property  and  have  her  dower 
assigned — When. 

As  is  stated  elsewhere  herein,  the  wife's  dower  still  remains 
in  the  real  estate  of  her  husband  sold  by  order  of  court  in  a 
proceeding  to  which  she  is  not  a  party.  And  Avhere  she  joins 
with  her  husband  in  the  execution  of  a  mortgage  which  is 
afterwards  foreclosed  in  a  proceeding  to  which  she  is  not 
a  party,  she  can  redeem  the  real  estate  from  the  purchaser  and 
then  have  her  dower  assigned  therein.94 


9i  Weaver  v.  Crowe.  (<  0.  S.  525. 
As  to  a  proper  remedy  to  enforce 
a  (lower  annuity  charged  against 
other  heirs  i:>  a  partition  ease,  see 
Miller  v.  Peters,  25  0.  S.  270. 
Where  partition  allowed,  though 
dower  is  previously  assigned,  see 
Tabler  v.  Wiseman,  2  0.  S.  20!). 
When  the  widow,  in  a  partition  suit, 
asks  dower  in  the  proceeds,  the  com- 
missioners are  not  authorized  to  fix 
its  value.  Benner  v.  Bird,  2  W.  L. 
B.  7(5.  As  to  where  an  order  made 
in  probate  court  confirming  parti- 
tion proceeding  and  depriving  her 
of  her  rights,  is  void,  sec  Wilford 
V.  Hainhofer,  2  C.  C.  N.  S.  309.  See 
iolso  under   this   general   subject  of 


dower  in  partition,  Biggins  v.  Jones, 
39   0.   S.   95. 

s-'Oen'l  Code,  §11732  ( R.  S. 
§5437). 

93  Bretz  v.  Moore.  4  C.  C.  X.  S. 
556;  Wanzer  v.  Widow.  2  W.  L.  M. 
426;  but  in  a  sale  of  real  "state  to 
pay  debts  in  which  she  asks  to  lie 
endowed  in  the  proceeds  of  the  sale. 
she  is  not  entitled  to  the  sum  of 
$500.00  in  lien  of  a  homestead. 
Jones  v.  Allen.  (J  X.  P.  5 IS. 

•"  K'etehnm  v.  Shaw.  28  O.  S.  506: 
McArthur  v.  Franklin.  15  ().  S. 
485-  Ibid,  lfi  O.  S.  193:  Jewell  v. 
Fieldheiser.  (IS  O.  S.  534:  Jeffry  v. 
Yoxtheimer,  12  C.  C.  568;  Baldwin 
v.    Jacks,    3    O.    Dec.    546.      When 


§§  469-473  MERWINE    ON    REAL    ACTIONS.  592 

Sec.  489.    The  effect  of  a  defective  conveyance  of  dower. 

When  a  conveyance  which  is  intended  to  be  in  lieu  of  dower, 
fails  through  any  defect  to  be  a  legal  bar  thereto,  and  the 
widow  or  widower  availing  of  such  defect  demands  dower, 
the  estate  or  interest  conveyed  to  such  widow  or  widower, 
with  the  intention  to  bar  dower,  will  thereupon  cease.95 

Sec.  470.     Effect  of  eviction  from  premises  conveyed  in  lieu 
of  dower. 

A  widow  or  widower  lawfully  evicted  from  real  property 
conveyed  in  lieu  of  dower,  or  in  part  thereof,  is  entitled  to 
be  endowed  of  so  much  of  the  residue  of  the  real  property 
of  the  deceased  consort  as  will  equal  that  from  which  such 
widow  or  widower  is  evicted.90 

Sec.  471.     Adultery  bars  dower. 

A  husband  or  wife  who  leaves  the  other  and  dwells  in 
adultery  shall  be  barred  of  the  right  of  dower  in  the  real 
estate  of  the  other,  unless  the  offense  is  condoned  by  the 
injured  consort.97 

Sec.  472.     Effect  upon  dower  where  lands  are  given  up  by 
fraud. 
If  a  husband  or  wife  gives  up  any  real  property  by  collusion 
or  fraud,  or  lose  the  same  by  default,  the  widow  or  widower 
may  recover  dower  in  the  same.98 

Sec.  473.     Dower  is  forfeited  by  waste. 

A  tenant  in  dower  in  real  property  who  commits  or  suffers 
any  waste  thereto,  will  forfeit  that  part  of  the  real  property 
to  which  such  waste  is  committed  or  suffered,  to  the  person 
having  the  immediate  estate  in  reversion  or  remainder;  and 
such  tenant  in  dower  will  be  liable  to  the  person  having  the 

widow  entitled  to  dower  in  partition  §4102).     Brown  v.  Kern,  G  N.  P. 

proceedings,     see     G  e  n '  1  Code,  72;     Hetherington     v.     Graham.     6 

§§12042,      12043,      12044  ( R.      S.  Bingham,    134;    Scribner   on   Dower, 

SS">770.   5771,   5772).  5.32;    Goss  v.  Frohman,  8  L.   R.  A. 

»BGen1      Code,      §8600  (R.      S.  102;    Bell   v.  Neely,    1    Bail    L.   .312; 

§41!Hi).  110    Am.    Deo.    686;     Woodward    v. 

!"■■(;•■  n'l      Code,      §8010  (R.      S.  Dowse,  C.  B.  N.  S.  722. 

§4191).  MGen'l      Code,      §8612      (R.     S. 

i<-On'l      Code,      §8011  (R.      S.  §4193). 


593 


LAW   AND    PROCEDURE    WHERE    DOWER   ASSIGNED. 


§474 


immediate    estate    in   reversion   or   remainder,   for   the   waste 
committed  or  suffered  thereto." 

Sec.  474.  Dower  forfeited  for  non-payment  of  tax — When — 
Widow  liable  in  damages  in  such  cases — When. 
If  any  person  who  is  seized  of  lands  as  tenant  in  dower, 
neglect  to  pay  the  taxes  thereon  so  long  that  such  land  shall 
be  sold  for  the  payment  of  the  taxes,  and  shall  not,  within 
one  year  after  such  sale,  redeem  the  same  according  to  law, 
such  person  will  forfeit,  to  the  person  or  persons  next  entitled 
to  such  lands  in  remainder  or  reversion,  all  the  estate  which 
he  or  she,  so  neglecting  as  aforesaid,  may  have  in  such  lands; 
and  the  remainderman  or  reversioner  may  redeem  said  lands 
in  the  same  manner  that  other  lands  may  be  redeemed  after 
having  been  sold  for  taxes;  and,  moreover,  the  person  so  neg- 
lecting as  aforesaid  will  be  liable  in  action  to  the  person  next 
entitled  to  the  estate,  for  all  damages  such  persons  may  have 
sustained  by  such  neglect.1 

Sec.  475.     How  dower  may  be  assxgned  by  heirs  of  deceased. 

When  the  lands  of  a  deceased  person  are  not  encumbered 
by  mortgage,  or  by  judgment  obtained  against  such  decedent 
during  life,  the  heir,  or  guardian  of  any  heir  or  other  person 
having  the  next  immediate  estate  of  inheritance,  may  assign 
to  the  widow  or  widower  dower  therein,  by  writing,  under 
his  hand,  particularly  describing  the  same,  which,  if  approved 
in  writing  on  the  deed  of  assignment  by  the  probate  judge 
of  the  county,  and  also  by  the  probate  judge  of  the  county 
appointing  such  guardian,  and  accepted  by  the  widow  or 
widower,  in  writing  thereon,  shall  be  a  good  assignment  in 
law.2 


^  Gen'l  Code.  §8013  (R.  S. 
§  4194).  There  can  be  no  forfeiture 
for  waste  until  dower  is  assigned. 
Fletcher  v.  Huntington,  8  N.  P. 
333:  as  to  failure  to  pay  taxes,  see 
dinger  v.  Hoffman,  6  W.  L.  J.  490. 
The  widow  may  cut  timber  on  im- 
proved lands  and  sell  the  same  to 
pay  taxes  where  there  is  no  other 
source  of  income.  Crockett  v. 
Crockett,  2  0.  S.  181. 

i  Gen'l    Code,    §5680,    and    Gen'l 


Code.  §5688  (R.  S.  §2845,  and  R. 
S.  §2852).  See  Tullis  v.  Pierano, 
9  C.  C.  647 ;  Jones  v.  Devore.  8  O.  S. 
430;  Clayson  v.  Ward,  1  X.  P.  218; 
Clark  v.  Lindsey,  47  O.  S.  437. 

2  Gen'l  Code',  §12004  (R.  S. 
§5707).  The  assignment  of  dower 
to  the  widow  under  this  statute, 
while  fair,  will  not  be  set  aside  by 
request  of  a  creditor,  because  the 
probate  judge  failed  to  indorse  his 
approval   on   the  back   of  the  deed. 


§§476,477  MERWINE    ON    REAL    ACTIONS.  594 

Sec.  476.     The  petition  for  dower. 

A  widow  or  widower  may  file  a  petition  for  dower,  in  the 
common  pleas  court,  against  the  heir  or  other  person  having 
the  next  immediate  estate  of  inheritance,  or  any  other  estate 
or  interest  therein,  setting  forth  the  right  thereto,  and  de- 
scribing the  tracts  of  land  in  which  dower  is  claimed;  and 
the  court,  on  the  hearing,  will  render  such  judgment  as  to  it 
appears  just  and  consistent  with  the  rights  of  all  the  parties 
interested  therein.3 

It  was  held  in  a  case  where  the  husband,  during  coverture, 
was  seized  of  several  tracts  of  land,  which  after  his  death 
came  into  various  hands,  that  a  petition  for  dower  could  be 
preferred  against  each.4  Such  an  action  by  a  widow  is  a  civil 
action  and  is  appealable.5 

An  order  of  the  court  fixing  the  annual  value  of  the  widow's 
dower,  and  directing  a  sale  of  real  estate  subject  thereto,  is 
a  judgment  within  the  meaning  of  the  statutes.0 

The  petition  for  dower  must  set  forth  that  the  one  against 
whom  the  action  is  brought  owns  the  next  immediate  inherit- 
ance or  a  fee  simple  estate  in  the  property  in  which  dower 
is  sought  to  be  assigned.7 

It  was  said  of  the  action  for  dower  under  an  old  statute 
that  it  was  substantially  a  possessory  action,  having  for  its 
object  the  recovery  of  a  private  right,  the  possession  of  lands 
in  which  the  complainant  has  an  estate  for  life.8 

Sec.  477.     Procedure   incidental   to   actions   for   dower — How 
incumbrances  may  be  set  up. 

In  actions  for  the  assignment  of  dower,  everyone  who  has 
an  interest  in  the  real  estate  by  way  of  title  thereto  must 
be  made  parties  defendant.  Infant  defendants  must  be  served 
as  in  other  actions.  Guardians  ad  J  item  must  be  appointed 
who   shall    defend    for   them.      Trustees    for    insane   defendants 

Smith  v.  Whistler,  10  C.  ('.  130.     As  bring  the  action   for  dower.     Estate 

to  who  can  assign  tlie  dower  to  the  of  Roth,  (Y  X.  P.  498. 

widow,  --re   Railway  Co.  v.  Jones,  4  ^  A I  ]<-ti  v.  McCoy,  8  0.  41S. 

W.  L.  <:.  :>.  RCofry   v.   Lamb,    t:?   0.   S.  :?<)0; 

sGen'l      Code.      §12005      (K.     S.  2  N.  E.  851. 

§5708).     See  No.  365  and  following  o  Schiml    v.    Schiml,    4    ('.   ('.   38; 

for    form    for    petition,    and    for    all  Gen'1    (ode.   §  8S10    (  ::.    S.    §3310). 

of   the   pleadings,    writs   and   orders  '  Railway  v.  Jones,  •>  0.  Dec.  Re- 

of  the  eonrt  in  the  proceedings.     An  print.   219. 

administrator    or   executor   can    not  s  Tuttle  v.  Wilson,  10  0.  27. 


595  LAW    AND   PROCEDURE    WHERE   DOWER   ASSIGNED.  §  478 

must  be  appointed  to  defend  for  them,  and  such  trustees 
are  required  to  answer  jis  provided  by  law.  Non-resident 
defendants,  whose  places  of  residence  are  known  and  un- 
known, must  be  served  by  publication  as  in  other  actions. 
All  parties  are  required  to  be  in  court  before  their  rights 
can  be  heard  and  determined.  A  full  discussion  of  each  one 
of  these  topics  will  be  found  in  tbe  first  chapter  of  tbis  book. 
When  the  rights  of  a  lessee  or  lienholder  are  showui  to  the 
court,  by  cross  petition  filed  before  judgment,  such  rights  and 
liens  will  be  regarded  by  the  court;  and  no  inequality  will 
be  allowed,  or  any  injustice  done  to  any  such  lessee  or  lien- 
holder.9 

Sec.  478.     Procedure  when  land  lies  in  different  counties. 

When  the  land  lies  in  several  counties  the  petition  may  be 
filed  in  any  county  where  any  part  of  the  estate  is  situated, 
and  the  common  pleas  court  of  such  county  shall  have  com- 
plete jurisdiction,  and  may  order  the  whole  dower  of  such 
widow  or  widower  to  be  assigned  in  any  one  or  more  of  such 
counties,  and  out  of  any  one  or  more  of  such  tracts  of  land, 
if  the  same  can  be  done  without  prejudice  to  the  rights  of 
any  person  claiming  the  title  to  or  holding  a  lien  on  such 
land.10 

Sec.  479.     Procedure  in  case  of  death  of  plaintiff  before  as- 
signment. 

When  the  plaintiff  dies  before  the  assignment  of  dower,  or 
before  entry  of  a  final  judgment,  the  action  may  be  revived 
in  the  name  of  the  executor  or  administrator;  it  will  be  the 
duty  of  the  court  to  proceed  to  hear  and  determine,  if  not 
before  decided,  whether  the  plaintiff  would  have  been  entitled 
to  dower  in  such  action  ;  and  if  it  be  found  that  the  plaintiff 
would  have  been  so  entitled,  the  court  will  be  required  to 
judge  in  favor  of  such  executor  or  administrator  a  sum  equal 
1o  one-third   of  the  rental  value   of  the   real   estate   in   which 

"On']     Code,      §1200(1      (B.     S.  v.  Deming,  44  O.  S.  645:  Renner  v. 

§570!)).     "In   a    suit    instituted   for  Bird.  2  W.  L.  B.  70:   Russel  v.  Rus- 

assignment    of    dower,    a    defendant  sel.   10  C.  C.  46. 

can   not.    by    his    answer   and   cross-  1"  Oen'l     Code,      §12007      (R.     S. 

petition,  change   tlie  suit  to  one  for  §5710). 

partition   and   dower."      See   McGill 


§§  480-482  MERWINE   ON    REAL   ACTIONS.  596 

it  is  found  the  plaintiff  would  have  been  entitled  to  dower, 
from  the  time  of  filing  the  petition  until  death,  after  deducting 
one-third  of  the  necessary  expenses;  and  the  sum  so  adjudged 
in  favor  of  such  executor  or  administrator  will  be  a  lien  upon 
the  real  estate  in  which  such  plaintiff  would  have  been  en- 
titled to  dower,  and  its  payment  may  be  enforced  by  sale  as 
upon  execution.11 

Sec.  480.  Appointment  of  commissioners  to  assign  dower — 
Duty  of  sheriff  in  such  cases. 
When  dower  is  adjudged,  the  court  must  appoint  three 
judicious,  disinterested  men  of  the  county  in  which  the  action 
is  pending,  who  are  not  of  kin  to  either  of  the  parties  inter- 
ested, to  be  commissioners,  and  issue  its  order  to  the  sheriff 
of  that  county,  commanding  him  that  by  the  oaths  of  the 
commissioners,  which  may  be  administered  by  him,  he  cause 
to  be  set  off  and  assigned  such  dower  to  the  plaintiff,  in  the 
manner  set  forth  in  the  judgment.12 

Sec.  481.  Proceedings  upon  return  of  an  assignment  of  dower. 
The  commissioners  and  sheriff  are  required  in  all  things  to 
obey  the  order,  and  to  return  their  proceedings  thereon  to 
the  court  at  such  times  as  the  court  appoints;  if  the  court 
approve  the  assignment,  it  will  be  entered  on  the  records 
thereof,  and  will  be  henceforth  valid  and  effective  in  law; 
an  execution  will  thereupon  be  issued  directing  the  sheriff 
of  the  county  to  put  the  widow  or  widower  in  full  possession 
of  the  dower  assigned.13 

Sec.  482.     How  dower  assigned  when  estate  is  indivisible. 

When  an  estate  of  which  a  widow  or  widower  is  dowable 
is  entice,  and  no  division  thereof  can  be  made  by  metes  and 
bounds,   dower  must  be   assigned  as   of  a   third  part   of  the 

uGen'l     Code,     §12008      (R.     S.  of  the  dower,   see    Biggs  v.  Annim, 

§5711,.  4  W.  L.  J.  540;   Dunseth  v.  Bank', 

i-i;,. n'l     (ode     §  L2009      (R.     S.  0  O.  70;  Heikes  v.  Peepaugh,  4  W. 

§5712).      See    R.    S.     §1300,    now  L.    J.   542;    McArthur   V.    Franklin, 

§3000,  as  to  fees  of  such  commis-  16  O.  S.  194;  Nyce  v.  Obertz,  17  O. 

sionors.      See    Dnnsetli    v.    Bank,    0  77. 

O.  70:   Allen  v.  McCoy,  8  O.  418;  m Gen'l     Code,     §12010     (R.     S. 

Larrowe  v.  Roam,  10  O.  40S.     As  to  §5713). 
tho  means  of  ascertaining  tlie  value 


597  LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED.  §  483 

rents,  issues  and  profits  thereof,  to  be  computed  and  ascer- 
tained by  the  commissioners.14 

In  the  assignment  of  dower  under  this  provision  of  the 
statute,  the  commissioners,  in  ascertaining  the  net  rents,  the 
expenses  of  reasonable  repairs  and  taxes  of  the  property  should 
be  deducted  from  the  gross  rents,  but  no  deductions  should 
be  made  for  the  expenses  of  water  rents  or  insurance.15 

It  has  been  said  that  the  assignment  of  rents,  issues  and 
profits  is,  as  near  as  judicial  instrumentalities  can  ascertain 
it,  the  exact  equivalent  of  an  actual  assignment  by  metes 
and  bounds.1'5 

Dower  so  assigned  is  a  freehold  estate.  The  owners  of  the 
estate  out  of  which  the  dower  is  assigned,  are  by  priority 
of  estate,  personally  liable  for  its  payment,  and  this  personal 
liability  is  over  and  in  addition  to  the  lien  on  the  real  estate." 

Sec.  483.  When  estate  consists  of  unimproved  timber  land- 
How  treated. 
When  an  estate  of  which  a  widow  or  widower  is  dowable, 
or  in  which  a  widow  or  widower  owns  a  dower  or  curtesy 
interest  heretofore  assigned  to  or  vested  in  her  or  him,  consists, 
in  whole  or  part,  of  timber  lands  or  other  unimproved  lands 
or  lots,  commissioners,  appointed  as  hereinbefore  provided, 
are  required  to  return  to  the  court  a  true  appraisement  of 
such  lands  in  money,  and  also  a  true  appraisement  of  the 
annual  rental  value  thereof,  and  if  it  be  made  to  appear  to 
the  court,  upon  the  hearing  of  such  report,  that  the  assign- 
ment of  dower  or  curtesy  in  such  lands,  either  by  metes  and 
bounds  or  as  of  the  rents,  issues  and  profits,  can  not  be  nor  has 
not  been  made  so  as  to  provide  such  widow  or  widower  with 
an  income  from  the  lands  or  lots  so  charged,  commensurat e 
with  the  value  of  the  same,  as  fixed  and  determined  by  said 
commissioners,  the  court  must  determine  the  value  of  such 
dower  or  curtesy  in  money,  and  make  an  order  directed  to 
the  sheriff  to  advertise  and  sell  the  lands  so  charged  with 
dower  or  curtesy,  or  so  much  thereof  as  may  be  necessary  as 

nGen'l     Code,     §12011      (R.     S.  isMcAlpine  v.  Woodruff,  11  O.  S. 

§5714).     This  act  can  operate  pros-  120. 

]iectively  only.     Vattier  v.  Johnston,  i"  Avery   v.  Xieman,   7  X.   P.   46; 

1    W.   L.   J.   303.  citing  Scribner  on  Dower,  630,  771, 

i".  Hillgartner  v.  Gebhart,  25  0.  S.  and  Park  on  Dower,  252,  253. 
557. 


§484  MERW1NE    ON    REAL,    ACTIONS.  598 

upon  execution;  provided,  said  sheriff  shall  not  be  required 
to  cause  said  lands  to  be  appraised,  but  the  value  thereof  as 
returned  by  said  commissioners  must  be  taken  as  the  appraised 
value  thereof,  and  such  lands  can  not  be  sold  for  less  than 
two-thirds  of  the  appraised  value;  upon  the  confirmation  of 
such  sale,  the  court  must  order  the  payment  to  such  widow 
or  widower  out  of  the  moneys  arising  from  the  sale  the  value 
of  such  dower  or  curtesy  so  fixed  and  determined  ;  provided, 
further,  the  person  or  persons  owning  such  lands  or  lots  so 
charged,  may,  at  the  time  the  order  for  the  sale  of  said  lands 
is  made  as  aforesaid,  elect  to  pay  to  such  widow  or  widower 
the  value  of  such  dower  or  curtesy;  and  if  such  payment  be 
made  within  ten  days  or  such  further  reasonable  time  as  the 
court  may  grant,  not  exceeding  ninety  days  from  such  elec- 
tion, the  court  must  make  a  decree  divesting  such  widow  or 
widower  of  any  interest  by  way  of  dower  or  curtesy  in  said 
lands ;  and  any  widow  or  widower  owning  a  dower  or  curtesy 
interest  in  timber  lands  or  other  unimproved  lots  or  lands 
heretofore  assigned  to  or  vested  in  him  or  her,  may  maintain 
an  action  for  relief  in  accordance  with  the  provisions  of  this 
paragraph.18 

Sec.  484.     Dower  during  pendency  of  petition. 

The  commissioners  are  required,  after  they  have  set  off  and 
assigned  dower,  to  make  a  just  and  true  appraisement  of  the 
yearly  value,  after  deducting  necessary  expenses,  of  the  real 
estate  in  which  the  widow  or  widower  is  entitled  to  dower, 
estimating  such  value  from  the  day  of  filing  the  petition  to 
the  day  of  assignment  of  dower,  and  make  return  of  such 
appraisement  and  assignment,  and  the  court  is  further  required 
to  adjudge  the  payment  of  one-third  of  the  whole  sum  so 
returned,  to  the  widow  or  widower,  out  of  the  real  estate 
not   covered   by  the   dower,  upon   which   judgment   execution 

wGenl      Code,      §12011      (R.     S.  ceeds,   but  may  have  the   lands  ap- 

8  5714).     As  to  widow's  right  to  cut  praised     and     ascertain     their     fair 

timber   <>n    such   lands   to   pay   taxes  value  by  hearing  testimony,  and  may 

therein,  see  Crockett  v.  Crockett,  2  fix   the   amount   of   the  dower   from 

O.  S.    IS].      In   an   action  for  the  as-  the  value  thus  found,  and  order  the 

signment    of    dower    in    unimproved  sale  of    so    much    'if   the  land    as    is 

lands   under  this   section,  the  court  necessary    to    realize    that    amount. 

is  not    required  to  order   the   lands  Russel  v.  Russel,  16  C.  C.  4(i. 
.-old  and  to  assign  dower  in  the  pro- 


5'J'J  LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED.  §  485 

may  issue;  but  nothing  herein  contained  will  be  so  construed 
as  to  require  execution  to  be  issued  against  such  of  the  defend- 
ants in  dower  as  are  minors,  but  in  all  such  cases  the  dower 
will  operate  as  a  lien  upon  the  real  estate,  for  their  proportion 
of  the  judgment,  until  the  same  is  fully  paid.19 

Sec.  485.     Exemptions  in  estimating  yearly  value  of  dower. 

The  commissioners,  in  making  the  appraisement  of  the  yearly 
value  of  the  real  estate  provided  for  in  the  last  preceding 
paragraph,  must  exclude  all  permanent  or  valuable  improve- 
ments made  thereon  after  the  deceased  consort  of  such  widow 
or  widower  ceases  to  be  the  owner  thereof.20 

Sec.  486.  Minor  heir  not  to  be  prejudiced  by  collusive  assign- 
ment. 
If,  during  the  minority  of  an  heir,  dower  be  assigned  to  a 
widow  or  widower  not  entitled  thereto,  or,  if  the  same  was 
recovered  by  the  default,  fraud,  or  collusion  of  the  guardian, 
such  heir  may,  on  coming  of  age,  have  an  action  against  such 
widow  or  widower  to  recover  the  lands  wrongfully  awarded.-' 

Sec.  487.     Costs  in  an  action  for  dower. 

If  resistance  be  made  to  the  petition  of  a  person  claiming 
dower,  and  the  court  find  that  such  person  is  entitled  to  dower 
as  claimed  in  the  petition,  the  defendant  so  resisting  must  pay 
all  costs  of  suit ;  but  if  no  resistance  be  made,  the  plaintiff 
must  pay  one-third  of  the  costs,  and  the  legal  owner  of  the 
real  estate  two-thirds  thereof.22 

Sec.  488.     Dower  may  be  elected  to  be  taken  out  of  proceeds 
of  sale — When. 

In  actions  for  partition,  when  the  estate  can  not  be  divided 
and  is  ordered  to  be  sold,  and  in  actions  for  the  sale  of 
real  estate  by  executors,  administrators,  guardians  and  as- 
signees, acting  under  a  general  assignment  for  the  benefit  Ol 
creditors,  and  in  all  other  actions  and  proceedings  herein  the 
court  may  order  the  sale  of  real  estate,  to  satisfy  any  judgment 

mGen'l  Code.     §12014      ( R.     S.  21  Gen'l     Code,     §  1201(i      ( R.     S. 

§5715).  §5717). 

2<>Gen'l  Code,     §12015      ( R.     S.  22  Gen'l     Code,     §12017      (R.     S. 

§5716).  §5718). 


§§  489-491  MERWINE   ON    REAL   ACTIONS.  600 

or  decree,  the  widow  or  widower  of  any  decedent,  who  has 
a  dower  interest  therein,  being  a  party,  may  file  an  answer, 
and  waive  the  assignment  of  dower  by  metes  and  bounds,  and 
ask  to  have  the  same  sold  free  of  dower,  and  to  have  allowed, 
in  lieu  thereof,  such  sum  of  money  out  of  the  proceeds  of  sale 
as  the  court  deems  the  just  and  reasonable  value  of  the  dower 
interest  therein.23 

Sec.  489.     Election  by  answer  is  a  release  of  dower,  when. 

The  answer  of  the  widow  or  widower  will  have  the  same 
force  and  effect,  and  will  be  taken  and  held  to  be,  in  all 
respects,  as  a  deed  of  release  to  the  purchaser  of  such  estate 
of  the  dower  interest  therein  of  such  widow  or  wido.wer.24 

Sec.  490.     Election  for  widow  or  widower  by  guardian — When. 

The  guardian  of  a  widow  or  widower  who  has  been  adjudged 
insane  may  appear  and  answer  for  such  insane  person  in  such 
action,  subject  to  the  approval  of  the  court  in  which  the  action 
is  pending ;  and  the  answer  of  the  guardian  will  have  the 
same  force  and  effect  as  if  the  widow  or  widower  or  the  heirs 
answered  personally;  but  the  guardian  will  be  liable  to  the 
widow  or  widower,  or  the  heirs,  for  all  damage  or  loss  sus- 
tained by  his  fraud  or  collusion,  notwithstanding  the  appro- 
val of  the  court.25 

Sec.  491.     Petition    to    discharge    land    of    dower    of   insane 
person. 

A  person  owning  real  property  in  this  State,  incumbered 
by  the  contingent  or  vested  right  of  dower  of  an  insane  per- 
son, may  apply,  by  petition,  to  the  court  of  common  pleas 
of  the  county  in  which  the  real  estate,  or  any  part  thereof,  is 
situated,  making  defendants  thereto  such  insane  person,  and 
also  the  husband  and  wife  and  guardian,  if  such  person  has 
cither  or  both,  for  leave  to  sell  all  or  any  part  thereof,  dis- 
charged and  unencumbered  of  such  contingent  or  vested  right 
of  dower,  which  petition  must  set  forth  the  insanity  of  the 
person,  together  with  a  description  of  the  land  proposed  to 

as  Oen'l     Code.     §12018      (R.     S.  25  Gen'l     Code,     §12020     (R.     S. 

85719).  §5721). 

2*  Qen'1     Code,     §12019     (R.    S. 
§  5720). 


601  LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED  §  492 

be  sold ;  the  court  must  thereupon  appoint  a  committee  of  six 
competent  men,  of  whom  at  least  three  are  physicians,  who 
will  be  required  under  oath,  to  inquire  into  the  fact  of  the 
insanity  of  such  person,  and  to  hear  testimony  to  be  produced 
by  the  husband,  wife,  or  guardian,  or,  if  there  is  no  such 
guardian,  by  a  guardian  ad  lit  an,  to  be  appointed  by  the  court 
in  the  action;  and  the  committee  will  be  required  at  any  term 
of  such  court,  to  make  a  report,  in  writing,  of  the  result  of 
their  investigation,  signed  by  the  members  thereof.20 

Sec.  492.     Report  of  committee  to  inquire  into  insanity. 

If  the  committee  report  unanimously  that  such  person  is,  in 
their  opinion,  permanently  insane,  the  court  will  then  appoint 
three  judicious  freeholders  to  appraise  the  real  estate  described 
in  the  petition,  whether  the  same  is  in  one  or  several  counties, 
avIio  will  be  required  to  report  in  writing  the  value  of  each 
tract.-7 

Sec.  493.     Procedure  on  report  of  insanity  to  court. 

Upon  the  filing  of  such  report  the  court  may  direct  such 
petitioner  to  convey,  by  good  and  sufficient  deed  of  conveyance, 
to  the  insane  person,  to  be  held  by  such  person  in  fee,  such 
proportion  of  the  real  estate  described  in  the  petition  as  may, 
to  the  court,  seem  just  and  proper,  or  the  court  may  assign 
to  such  insane  person,  to  be  held  by  such  person  during  life, 
after  the  death  of  the  husband  or  wife  of  such  insane  person, 
such  proportion  of  the  real  estate  described  in  the  petition 
as  may,  to  the  court,  seem  just  and  proper  for  the  support 
of  such  insane  person,  or  the  court  may  order  the  petitioner 
to  invest  an  amount,  to  be  by  it  fixed,  in  the  stock  of  a  com- 
pany, or  stocks  created  by  the  laws  of  this  State,  as  by  the 
court  may  be  designated,  the  profits  and  dividends  arising 
from  such  investment  to  be  applied  to  the  support  and  main- 
tenance of  the  insane  person  after  the  death  of  the  husband 
or  wife  of  such  insane  person;  and  the  petitioner  may,  upon 
his  compliance  with  the  order  of  the  court,  sell  all  the  real 
property  the  petitioner  is  possessed  of,  described  in  the  peti- 

seden'l     Code,     §12021      (R.     S.  27  Cen'l     Code,     §12022      (R.     S. 

§5722).  §5723). 


§§494,495  MERWINE    ON    REAL    ACTIONS.  602 

tion,  free  and  unencumbered  of  the  contingent  or  vested  right 
of  dower  of  such  insane  person.28 

Sec.  494.     Lands  of  insane  person  barred  of  dower — How. 

When  the  husband  or  wife  of  an  insane  person  conveys  any 
real  estate  in  this  State,  in  which  such  insane  person  has  a 
contingent  or  vested  right  of  dower,  by  virtue  of  such  owner- 
ship of  the  husband  or  wife,  or  otherwise,  and  the  insane  per- 
son does  not  join  a  husband  or  wife  in  such  conveyance,  the 
husband  or  wife  may  apply  by  petition  to  the  court  of  common 
pleas  of  the  county  in  which  the  insane  husband  or  wife  resides, 
or,  if  the  insane  husband  or  wife  resides  out  of  the  State, 
then  in  the  county  in  which  the  real  estate  is  situated,  for 
leave  to  have  any  part  or  all  of  such  real  estate  so  conveyed 
released  of  the  dower  right  therein,  which  petition  must  set 
forth  the  insanity  of  the  husband  or  wife,  and  the  description 
of  the  land  proposed  to  be  affected ;  to  which  petition  the 
insane  person,  guardian,  if  there  is  one,  and  all  persons  in 
interest,  must  be  made  defendants  and  the  petition  must  be 
proceeded  in,  in  all  respects,  in  the  manner  prescribed  in  the 
three  preceding  paragraphs,  except  that  instead  of  ordering 
the  petitioner  to  sell  the  real  estate,  or  to  convey  or  assign 
to  such  insane  person  any  part  thereof,  it  is  made  the  duty 
of  the  court  to  direct  the  petitioner  to  make  such  investment 
as  is  provided  in  the  preceding  paragraphs,  or  may  require 
the  petitioner  to  secure  the  amount  to  the  use  of  the  insane 
person  by  mortgage  of  unencumbered  real  estate  of  at  least 
double  the  value  thereof,  and  upon  compliance  by  the  peti- 
tioner with  the  order  of  the  court,  the  court  is  required  to 
enter  a  judgment  releasing  and  discharging  the  real  estate  from 
the  incumbrance  of  such  contingent  or  vested  right  of  dower, 
and  is  required  to  adjudge  the  holder  of  the  legal  title,  or 
other  party  liable,-8*  to  pay  to  the  petitioner  any  sum  withheld 
or  retained  as  indemnity  against  such  dower  right. 

Sec.  495.     Conveyance  of  real  estate  free  from  dower  if  wife 
or  husband  is  insane. 

The  statute  further  provides  that  any  real  estate  or  interest 
therein,  coming  to  any  person  by  purchase  after  the  husband 

zsGenl     Code,     §12023      (R.     S.  zs  *Gen'I     Code,     §12024     (R.    S. 

§5724).  5725). 


603  LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED.  §  496 

or  wife  of  such  person  is  adjudged  insane,  and  is  an  actual 
inmate  of  any  asylum  for  the  insane  provided  by  this  State, 
or  confined  in  the  insane  department  of  any  epileptic  hospital 
of  this  State,  or  any  State  of  this  Union,  may  be  conveyed  by 
such  person,  at  any  time  while  such  insane  husband  or  wife 
remains  an  inmate  of  any  such  asylum,  free  and  clear  from 
any  dower  right,  or  expectancy  of  such  insane  person,  and 
dower  will  not  attach  to  any  such  real  estate  both  so  acquired 
and  conveyed  during  said  time  as  aforesaid  in  favor  of  such 
insane  person,  and  the  indorsement  upon  the  instrument  of 
conveyance,  by  the  superintendent  of  any  such  asylum  that 
such  husband  or  wife  is  an  insane  inmate  of  such  asylum, 
stating  when  received  therein,  signed  officially  by  him,  will 
be  sufficient  evidence  of  the  fact  that  such  husband  or  wife 
is  such  insane  inmate  and  such  indorsement  will  be  a  part 
of  such  instrument  of  conveyance.'-" 

Sec.  496.  Wife  barred  of  dower  when  divorce  granted  to 
her  husband  on  account  of  her  aggression. 
When  the  divorce  is  granted  by  reason  of  the  aggression 
of  the  wife,  she  will  be  barred  of  all  right  of  dower  in  the 
lands  of  which  her  husband  is  seized  at  the  time  of  filing  the 
petition  for  divorce,  or  which  he  thereafter  acquires,  whether 
there  is  issue  or  not ;  and  the  effect  of  the  judgment  of  divorce 
will  be  to  restore  to  her  the  whole  of  her  lands,  tenements  or 
hereditaments  not  previously  disposed  of,  and  not  allowed 
to  her  husband  as  alimony,  subject  to  the  dower  right  of  her 
husband  therein,  and  the  court  may  adjudge  to  her  such 
share  of  the  husband's  real  or  personal  property,  or  both,  as 
it  deems  just  and  reasonable;  or  the  husband  may  be  allowed 
such  alimony  out  of  the  real  and  personal  property  of  the 
wife  as  the  court  deems  reasonable,  having  due  regard  to 
the  property  Avhich  came  to  the  wife  by  marriage,  and  the 
value  of  her  real  and  personal  estate  at  the  time  of  the  divorce, 
which  alimony  may  be  allowed  to  him  in  real  or  personal 
property,  or  both,  or  by  decreeing  to  him  such  sum  of  money, 
payable  either  in  gross  or  in  installments,  as  the  court  deems 
just  and  equitable;  and  if  the  husband  survives  his  wife,  he 
will  also  be  entitled  to  his  right  of  dower  in  the  real  estate 
of  his  wife  not  allowed  to  him  as  alimony,  of  which  she  was 

2"Gen'l     Code,     §12025      ( R.     S.    §  5725a). 


§497 


MERWINE    ON    REAL    ACTIONS. 


604 


seized   at   any   time   during   the    coverture,    and   to   which   he 
had  not    relinquished   his  right   of  dower.30 

When  the  husband  obtains  a  divorce  from  his  wife  on 
service  by  publication,  the  court  is  without  power  in  such 
action  to  divest  her  of  her  dower  in  his  property.  In  order 
to  give  the  court  power  in  such  cases  to  make  any  order  or 
decree  affecting  real  estate  of  the  parties,  there  must  be  per- 
sonal service.31 

Sec.  497.  Dower  rights  when  divorce  granted  by  reason  of 
the  aggression  of  the  husband. 
When  a  divorce  is  granted  by  reason  of  the  aggression  of 
the  husband,  the  wife  will,  by  force  of  the  judgment  of  divorce, 
be  restored  to  all  her  lands,  tenements  and  hereditaments  not 
previously  disposed  of,  and  the  husband  will  be  barred  of 
all  right  of  dower  therein,  and  if  she  so  desire,  it  will  be 
the  duty  of  the  court  to  restore  to  her  any  name  she  had  before 
such  marriage;  she  will  be  allowed  such  alimony  out  of  her 
husband's  real  and  personal  property  as  the  court  deems  rea- 
sonable, having  due  regard  to  the  property  which  came  to  him 
by  marriage,  and  the  value  of  his  real  and  personal  estate  at 
the  time  of  the  divorce,  which  alimony  may  be  allowed  to 
her  in  real  or  personal  property,  or  both  or  by  decreeing  to 
her  such  sum  of  money,  payable  either  in  gross  or  install- 
ments, as  the  court  deems  just  and  equitable;  and  if  the  wife 
survives  her  husband,  she  will  also  be  entitled  to  her  right 
of  dower  in  the  real  estate  of  her  husband  not  allowed  to 
her  as  alimony,  of  which  he  was  seized  at  any  time  during 
coverture,  and  to  which  she  had  not  relinquished  the  right 
of  dower;  but  in  any  case,  when  it  appears  to  the  court  that 
the  husband  is  the  owner  of  but  little  or  no  property  or  means, 


so  Gen'l  Code,  §11903  (R.  S. 
§5700).  See  in  connection  with 
this  matter  Mansfield  v.  Mclntire, 
10  O.  27 ;  Doerr  v.  Forsythe,  50  O.  S. 
726.  At  common  law  a  divorced 
wife  was  nut  entitled  to  dower,  the 
nil'  being  that  dower  conies  to  the 
widow,  in  t  to  the  divorced  wife. 
Julier  \.  Julier,  02  <  >.  S.  L90;  50 
X.  E.  661.  As  to  dower  rights  of 
wife  divorced  from  her  husband  by 
reason  <>f  his  aggression,  as  against 
dower  rights  of  second  wife  of  her 


former  husband,  see  King  v.  King, 
!)  C.  C.  191.  See  also  Rice  v.  Leni- 
ley,  10  O.  S.  596,  construing  the  act 
of  1824,  and  McGill  v.  Deming,  44 
O.  S.  645;  11  X:  E.  118,  construing 
the  act  of  1853. 

si  Doerr  v.  Forsythe.  50  O.  S.  726; 
35  X.  E.  1055.  The  court,  under  sec- 
tion of  the  statute,  Gen'l  Code, 
g  1  199.-5  (R.  S.  §  5700),  has  no  power 
over  the  property  of  each  except  as 
given  therein.  DeWitt  v.  DeWitt, 
67  O.  S.  350. 


605 


LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED. 


§  498 


and  the  wife  is  the  owner  of  lands  or  personal  estate,  or  both, 
the  court  may  adjudge  to  the  husband  such  share  of  the  wife's 
real  or  personal  property,  or  both,  or  may  decree  to  him  such 
sum  of  money  out  of  her  estate,  payable  in  gross  or  in  install- 
ments, as  the  court  deems  just  and  reasonable,  having  due 
regard  to  all  the  circumstances  of  the  parties.02 

It  was  held,  under  a  similar  statute,  that  where  the  wife 
obtained  a  decree  of  divorce  on  account  of  the  aggression  of 
the  husband,  and  afterward  marries,  she  will,  on  the  death 
of  her  divorced  husband,  be  entitled  to  dower  in  all  of  the 
real  estate  of  which  her  divorced  husband  was  seized  during 
their  coverture.33 

Sec.  498.     Election   when   person   unable    to   appear   or   non- 
resident. 

If  the  widow  or  widower  of  the  testator  be  unable  to  appear 
in  court  by  reason  of  ill  health,  or  is  not  a  resident  of  the 
county  in  which  such  election  is  required  to  be  made,  the 
probate  court  is  required,  on  an  application  made  in  behalf 
of  such  person,  to  issue  a  commission,  with  a  copy  of  the  will 
annexed,  directed  to  any  suitable  person,  to  take  the  election 
of  such  widow  or  widower  to  accept  the  provisions  of  such 
will  in  lieu  of  the  provision  made  by  law;  and  it  is  also 
made  the  duty  of  the  court  in  such  commission  to  direct  such 
person  to  explain  the  rights  of  such  widow  or  widower  under 
the  will,  and  by  law.34 

Sec.  499.     How  the  election  of  an  insane  or  imbecile  person 
is  made. 

If  the  widow  or  widower  of  any  testator  be  unable  to  make 
an   election   by  reason   of  unsoundness   of  mind,   the   probate 


32Geai  Code,  §11990  (R.  S. 
§5699).  "Section  5699  of  the  Re- 
vised Statutes,  which  gives  a  right 
of  dower  to  a  divorced  wife  in  the 
lands  of  the  husband  in  certain 
cases,  is  enabling  in  its  character, 
and  does  not  create  a  disability,  nor 
impose  any  restraint  on  the  power 
of  the  wife  to  relinquish  such  dower, 
in  any  lawful  mode,  when  the  di- 
vorce  is   granted,    or    at    any   time 


thereafter."  Julier  v.  Julier,  62  0. 
S.  90. 

33Lamkin  v.  Knapp,  20  O.  S.  154; 
Arnold  v.  Donaldson,  46  O.  S.  73. 
"A  woman  who  was  divorced  from 
her  husband,  and  to  whom  his  lands 
were  allowed  as  alimony,  by  decree 
of  the  court,  is  not.  after  his  death, 
entitled  to  dower  in  such  lands." 
McKean  v.  Ferguson,  51   0,  S.  207. 

34Gen'l  Code,  §10573  (R.  S. 
§5965). 


§  500  MERWINB    ON    REAL    ACTIONS.  606 

court  must,  as  soon  as  the  facts  come  to  the  knowledge  of 
the  court,  at  any  time  within  one  year  after  the  death  of 
the  testator,  appoint  some  suitable  person  to  ascertain  the  value 
of  the  provision  made  by  the  testator  for  such  widow  or 
widower  in  lieu  of  the  provisions  made  by  law,  and  the  value 
of  the  rights  of  law  in  the  estate  of  the  deceased  consort; 
and  if  the  court  is  satisfied,  on  the  return  of  the  report  of 
the  person  appointed  to  make  such  investigation,  that  the 
provision  made  by  the  testator  for  the  widow  or  widower,  in 
the  will,  is  more  valuable  and  better  than  the  provision  by 
law,  the  court  must  make  a  record  upon  its  minute  book  the 
entry  that  such  insane  or  imbecile  widow  or  widower,  by 
virtue  of  the  proceeding  herein  provided,  elects  to  take  under 
the  will  of  the  deceased  consort,  which  election,  when  so 
entered,  will  have  the  same  force  and  effect  as  an  election 
made  by  one  not  under  such  disability.3"' 

Sec.  500.     Effect  of  widow's  election  or  non-election. 

The  election  of  the  widow  or  widower  to  take  under  the  will 
must  be  made  in  person,  in  the  probate  court  of  the  proper 
county,  except  as  hereinafter  provided;  and  on  the  applica- 
tion by  a  widow  or  widower  to  take  under  the  will,  the  cour^ 
is  required  to  explain  the  provisions  of  the  will,  the  rights 
under  it,  and  by  law  in  the  event  of  a  refusal  to  take  under 
the  will.  The  election  of  the  widow  or  widower  to  take  under 
the  will  must  be  entered  upon  the  minutes  of  the  court;  and 
if  the  widow  or  widower  fail  to  make  such  election,  the  widow 
or  widower  will  retain  the  dower,  and  such  share  of  the  per- 
sonal estate  of  the  deceased  consort  as  the  widow  or  widower 
would  be  entitled  to  by  law  in  case  the  deceased  consort  had 
died  intestate,  leaving  children.  If  the  widow  or  widower 
elect  to  take  under  the  will,  tin-  widow  or  widower  will  be 
barred  of  dower  and  such  share,  and  will  take  under  the 
will  alone,  unless  as  provided  in  the  next  preceding  section; 
but  such  election  by  ;he  widow  or  widower  to  take  under  Ihe 
will,  will  not  bar  the  right  to  remain  in  the  mansion  of  the 
deceased  consort,  or  the  widow  to  receive  one  year's  allowance 
for  the  support  of  herself  and  children,  as  provided  by  law. 
unless  the  will  shall  expressly  otherwise  direct.38 

35  Genl     (ode,     ?  10574      ( R.     S.  "<■■  Con']    Code,    §§     10570.    10571, 

?  5966).  10572    (R.  S.  §  5!)(i4  ) . 


607  LAW    AND    PROCEDURE    WHERE    DOWER    ASSIGNED.  §  501 

Sec.  501.     Election  of  widow  to  take  under  will  bars  dower 
unless  the  will  provides  that  she  shall  have  both. 

If  any  provision  be  made  for  the  widow  or  widower  in  the 
will  of  the  deceased  consort,  it  is  made  the  duty  of  the  probate 
court,  after  the  probate  of  such  will,  forthwith  to  issue  a 
citation  to  such  widow  or  widower  to  appear  and  elect  whether 
to  take  such  provision  or  to  be  endowed  of  the  lands  of  the 
deceased  consort  and  take  the  distributive  share  of  the  per- 
sonal estate;  and  such  election  must  be  made  by  the  widow 
within  one  year  from  the  date  of  the  service  of  the  citatum 
aforesaid;  provided,  that  such  widow  or  widower  may,  at 
any  time  before  the  period  of  such  election  has  expired,  tile 
her  petition  in  the  court  of  common  pleas  for  the  proper 
county,  making  all  persons  interested  in  said  will  defendants 
to  such  petition,  asking  a  construction  of  the  provisions  of 
said  will  in  her  or  his  favor,  and  to  have  the  advice  of  said 
court,  or  of  the  proper  appellate  court  on  appeal  thereon; 
and  if  proceedings  for  such  advice,  or  proceedings  to  contest 
the  validity  of  such  will,  be  commenced  within  such  year, 
the  widow  or  widower  will  be  entitled  to  make  election  within 
three  months  after  such  proceedings  have  been  fully  disposed 
of,  and  said  will  set  aside ;  but  the  widow  or  widower  will 
not  be  entitled  to  both  dower  and  the  provisions  of  the  will 
in  her  or  his  favor,  unless  it  plainly  appear  by  the  will  to 
have  been  the  intention  that  the  widow  or  widower  should  have 
such  provision  in  addition  to  the  dower  and  such  distributive 
share. 

36*G«n'l    Code,    §§  105&6,    10567,   10568,  10569    (R.  S.   §5963). 


FORMS. 


PROCEDURE  FOR  ASSIGNMENT  OF  DOWER. 


Forms.  Foems. 

365.     Petition  for  dower.  370. 

The    summons.  371. 

Sheriff's   return   of   service  of 

summons.  372. 

Order     of     court     appointing       373. 

guardian   ad    litem    for   in-       374. 

fant  defendants. 
Answer  of  guardian  ad   litem 

for   infant  defendants. 


366. 

367. 

36S. 


369. 


Decree   for   dower. 

The  writ  of   dower   issued   to 

the  sheriff. 
Sheriff's    return    of    the    writ. 
Commissioner's   report. 
Order     of     court     confirming 

commissioners'  report. 


No.  365.     Petition  for  dower. 


Court  of  Common  Pleas, 


County.  Ohio. 


M.  A.  M., 


Plaintiff, 


vs. 


No. 


E.  L.  J.  and  J.  J.,  her  husband, 
M.  M.  C  and  J.  M.  C,  her  husband, 
C.  M.  F.  and  R.  J.  F.,  her  husband, 
Q.  W.  M.  and  H.  M.,  his  wife,  S.  M., 
V.  M.,  B.  M.  M.,  C.  M.  M.,  J.  A.  M., 
J.  E.  M.,  and  M.  H., 
Defendants. 

The  plaintiff  says  that  on  or  about  the  day  of  , 

19 ,  she  was  duly  married  to  one,  T.  M.,  and  that  the  said  T.  M. 

has  since  departed  this  life  on  or  about  the  day  of  . 

19 ,  and  the  said  plaintiff  further  says  that  the  said  T.  M.,  her 

late  husband,  during  her  coverture  with  him,  was  seized  of  an  estate 
of    inheritance    in    and    to    the    following    real    estate,    situate    in    the 

County  of  ,  State  of  Ohio,   and   in  the  and  bounded 

and  described  as  follows:     (Here  insert  description  of  real  estate). 

Plaintiff  further  says  that  the  said  E.  L.  J.,  M.  M.  C,  C.  M.  F., 
T.  W.  M.,  S.  M.,  V.  M.,  B.  M.  M.,  C.  M.  M.,  J.  A.  M.  and  J.  E.  M., 
the  last  four  of  whom  are  minors,  now  claim  to  hold  the  estate  of 
the  said  T.  M.,  and  to  be  the  joint  holders  of  the  fee  in  and  to 
the  said  premises  so  as  aforesaid  described. 

Plaintiff   further   says   that   by    reason   of   the   premises   aforesaid, 

608 


609  FORMS. 

she  is  entitled  to  have  set  off  and  assigned  to  her  reasonable  dower 
in  the  real  estate  hereinbefore  described. 

Plaintiff  therefore  prays  that  the  writ  of  subpoena  may  issue 
against  the  said  defendants  and  that  guardians  ad  litem  may  be  duly 
appointed  for  said  infant  defendants,  and  that,  on  the  final  hearing 
of  this  case,  her  reasonable  dower  in  said  real  estate  may  be  decreed 
to  her  and  an  assignment  thereof  be  made  in  accordance  with  law, 
and  for  such  other  and  further  relief  as  the  nature  of  her  case  may 

in  equity  require.  "» 

Attorney  for  Plaintiff. 

(The  petition  is  verified  in  the  usual  form.) 

No.  366.     Summons. 

State  of   Ohio,   County,   ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  commanded  to  notify  E.  L.  J.  and  J.  J.,  her  husband, 
M.  M.  C.  and  J.  M.  C,  her  husband,  C.  M.  F.  and  R.  J.  F.,  her  husband, 
T.  W.  M.  and  R.  M.,  his  wife,  S.  M.,  V.  M.  and  B.  M.  M.,  C.  M.  M.,  J.  A. 
M.  and  J.  E.  M.,  minors,  who  live  with  plaintiff,  and  M.  H.,  that  they 

have  been  sued  by  M.  A.  M.,  in  the  court  of  Common  Pleas  of  — 

County,  and  that  unless  they  answer  by  the  day  of  , 

19: ,    the    petition   of    the   said    plaintiff   against   them   filed    in   the 

clerk's   office   of   said   court,   said   petition   will   be   taken  as   true   and 
judgment  rendered  accordingly. 

You  will  make  due  return  of  this  summons   on  the  day 

of  -,  19 • 

Witness    my   hand   and    seal    of   this   court   this   day    of 

,   19—. 


Clerk  of  the  Court  of  Common  Pleas 
of  County,  Ohio. 

No.  367.     Sheriff's  return  of  service  of  summons. 

Received   this   writ   on   the  day  of  ,   19 ,   and 

pursuant  to  its  command  on  the  day  of  ,   19 ,  I 

served  E.  L.  J.,  J.  J.,  M.  M.  C,  J.  M.  C,  R.  J.  F.  and  R.  M.  a  true  copy  of 

this  writ  with  all  the  endorsements  thereon  by  leaving  true  copies  at 

their  usual   places  of   residence,   and   also  on   the  same   day   I   served 

0.  M.  F.,  T.  W.  M.  and  S.  M.,  V.  M.  by  delivering  to  each  person  a 

true   copy   of   this  writ   with   all   the   endorsements   thereon,   and   also 

on  the  same  day   I   served   B.   M.  M.    (a  minor),   and   M.  A.   M.,   who 

is  guardian  of  B.  M.  M.  by  delivering  to  each  personally  true  copies 

of  this  writ  with  all  the  endorsements  thereon,  and  also  on  the  same 

day  I  served  J.  A.  M.,  a  minor,  with  a  true  copy   of  this  writ  with 

all   the   endorsements    thereon,   by   leaving  a   true   copy   at   her    usual 

place  of  residence,  and  also  on  the  same  day  I  served  M.  A.  M.,  who 

is   guardian   of   J.   A.   M.,    personally   with    a  true   copy    of   this   writ, 

with  all  the  endorsements  thereon,  and  also  on  the  same  day  I  served 


MERWINE   ON    REAL,   ACTIONS.  610 

J.  E.  M.,  a  minor,  with  a  true  copy  of  this  writ,  with  all  the  endorse- 
ments thereon,  by  leaving  a  true  copy  at  his  usual  place  of  residence, 
and  also  on  the  same  day  I  served  M.  A.  M.,  who  is  guardian  of 
J.  E.  M.,  personally  with  a  true  copy  of  this  wrk,  with  all  the 
endorsements  thereon,  and  also  -on  the  same  day  I  served  M.  H.  with 
a  true  copy  of  this  writ  with  all  the  endorsements  thereon,  by  leaving 
a  true  copy  at  his  usual  place  of  residence. 

Sheriff  of Count]/,  Ohio. 

No.  368.     Order   of  court  appointing  guardian  ad  litem  for 

infant  defendants. 

On  motion  of  the  plaintiff  to  the  court  for  that  purpose,  

is  hereby  appointed  as  guardian  ad  litem  of  the  said  B.  M.  M.,  C. 
M.  M.  J.  A.  M.  and  J.  E.  M.,  minors  and  infant  defendants  in  this 
case,  with  leave  to  file  herein  an  answer  for  said  infant  defendants, 
instanter,   all  of  which   is  now  done  accordingly. 

No.  369.     Answer  for  guardian  ad  litem  for  infant  defendants. 

(Same  caption  as  in  the  petition.) 

Answer  of  .  Guardian  ad  Litem,  fob  B.  M.  M.,  C.  M.  M., 

J.  A.  M.  and  J.   E.   M.,   Infant   Defendants. 

Now  comes  ,  who  has  been  duly  appointed  by  this  court, 

guardian  for  this  suit,  of  the  said  infants,  B.  M.  M.,  C.  M.  M.,  J. 
A.  M.  and  J.  E.  M.,  and  for  joint  answer  for  his  said  wards  to  the 
petition  of  the  said  plaintiff,  filed  herein,  says,  that  he  denies  each 
and  every  allegation  and  statement  of  fact  contained  in  said  petition 

and  demands  full  proof  thereof.  , 

(luardian  ad  Litem  of  sakl  Infant   Defendants. 

No.  370.    Decree  for  dower. 

(Same  caption  as  in  the  petition.) 

This  cause  coming  on  for  hearing,  and  a  jury  being  waived,  was 
submitted  to  the  court  upon  the  pleadings,  exhibits  and  evidences 
and  on  consideration  whereof,  the  court  finds  that  the  said  T.  M. 
was  in  his  lifetime,  seized  in  fee  simple  of  the  real  estate  and  premises 
described   in  the  petition;    that   the  said   T.   M.   died   intestate   at   the 

City  0f  (  Ohio,  on  the  day  of  ,  19 ;    that 

the  said  plaintiff,  M.  A.  M..  is  the  widow  of  the  said  T.  M.,  deceased, 
and  that  she  is  entitled  to  have  her  dower  in  said  real  estate  and 
premises  assigned  and  set  off  to  her.  as  she  prayed  for  in  her  said 
petition. 

It  is  therefore  ordered,  adjudged  and  decreed  by  the  court  that 
the  said  plaintiff,  M.  A.  M.,  be  endowed  of  one  full  equal  third  part 
of   the  said    real    estate  and   premises   described    in    her   said    petition, 


611  FORMS. 

and  that  a  writ  issue  to  the  sheriff  of  said  county  of  ,  com- 
manding him  that  by  the  oaths  of  B.  F.  M.,  J.  E.  and  T.  W.  J., 
three  judicious,  disinterested  men  of  the  vicinity,  in  said  county,  who 
are  not  of  kin  to  either  of  the  parties  and  who  are  hereby  appointed 
commissioners  for  that  purpose  to  set  off  and  assign  such  dower  to 
said  plaintiff,  M.  A.  M.,  according  to  law,  and  that  of  said  proceedings, 
together   with   said   commissioners'   appraisement   of   the   monthly   net 

value  of  said  real  estate,  estimated  from  the day  of , 

19 ,  to  the  day  of  such  assignment  of  dower,  the  said  commissioners 

and  the  said  sheriff  make  return  without  unnecessary  delay. 

No.  371.     The  writ  of  dower  issued  to  the  sheriff. 

The   State   of  Ohio,  County,  ss.: 

To  the  Sheriff  of  our  said  County,  Greeting: 

Whereas,  in  a  certain  petition  for  dower,  now  pending  in  our 
Court  of  Common  Pleas,  wherein  M.  A.  M.  is  petitioner,  and  E.  L. 
J.,  et  al.  defendants,  the  real  estate  set  forth  in  the  petition  is  de- 
scribed as  follows,  to-wit:  (Here  insert  description  of  real  estate) 
in  which  said   premises  the  said  petitioner  is  entitled  to  dower. 

We  therefore  command  you  that,  by  the  oaths  of  B.  F.  M.,  J.  E. 
and  T.  W.  J.,  three  judicious,  disinterested  men  of  the  vicinity  of 
said  land  and  who  are  not  of  kin  to  either  of  the  parties  interested, 
you  cause  one  equal  third  part  of  the  real  estate  aforesaid  to  be  set 
off  and  assigned  to  said  M.  A.  M.  for  her  dower  interest  therein,  and 
also  that,  by  the  oaths  aforesaid,  you  cause  to  be  made  a  just  and 
true  appraisement  of  the  monthly  value,  after  deducting  necessary 
expenses  of  the  aforesaid  real  estate,  estimating  such  value  from  the 

day  of  ,  19 ,  up  to  the  day  of  this  assignment; 

and  that  you  certify  your  proceedings  in  the  premises  to  this  Court 
of  Common  Pleas  without  unnecessary  delay,  and  bring  this  order 
with  you. 

Witness   clerk   of  our  said   court  at  ,   Ohio,   this 

day   of  ,    19 .  . 

No.  372.     Sheriff's  return  of  the  writ. 
(Same  caption  as  in  the  petition.) 

As  commanded  by  this  writ,  I  have,  by  the  oaths  of  B.  F.  M., 
J.  E.  and  T.  WT.  J.,  three  judicious,  disinterested  men  of  the  vicinity, 
and  not  being  of  kin  to  either  party,  and  who  were  duly  appointed 
by  this  court  for  that  purpose,  caused  to  be  set  off  and  assigned  to 
the  within  named  M.  A.  M.,  plaintiff,  as  her  dower  estate,  so  much 
of  the  land  and  tenements  described  in  this  writ  as  is  mentioned  and 
described  in  the  report  of  the  said  commissioners  hereunto  annexed, 
marked  "A,"  and  which  report  is  hereby  made  a  part  of  this   return. 

Given  under  my  hand  and  seal  this day  of ,  19 . 

Sheriff. 


MERWINE    ON   REAL   ACTIONS.  612 

No.  373.     Commissioners'  report. 


According  to  the  command  of  the  writ  for  the  assignment  of 
dower  issued  in  this  case,  and  on  the  call  of  the  sheriff  of  said 
county,  we,  the  undersigned  commissioners,  after  being  first  duly 
sworn  and  not  being  of  kin  to  either  of  said  parties  and  upon  actual 
view  of  the  premises,  do  set  off  and  assign  to  the  said  M.  A.  M.  as 
and  for  her  dower  estate  so  much  of  the  lands  and  tenements  de- 
scribed in  the  said  writ  as  is  contained  in  the  following  tracts:  (Here 
insert  description  of  real  estate). 

We  also  by  our  oaths  as  aforesaid  do  estimate  and  appraise  the 
monthly  net  value  of  the  real  estate  described  in  said  writ,  at  the  sum  of 
$ — . 

Given   under  our   hands   and   seals   this  day   of   , 

19 . 

No.  374.     Order  of  court  confirming  commissioners'  report. 

(Same  caption  as  in  the  petition.) 

On   motion   the   court   by   ,    counsel    for   the   plaintiff,    and 

upon  producing  the  sheriff's  return  and  the  assignment  of  dower,  under 
the  former  order  of  this  court,  and  the  same  being  found  to  be  in 
all  respects  in  conformity  to  law,  it  is  ordered  that  the  said  proceed- 
ings and  assigment  of  dower,  be  and  the  same  are  hereby  approved 
and  confirmed,  and  that  the  said  M.  A.  M.  hold  and  possess  the  land 
so  assigned,  as  and  for  her  reasonable  dower  in  and  to  the  said 
premises;  and  it  is  further  ordered  that  a  writ  of  seizin  issue  to 
the  said  sheriff  commanding  him  to  deliver  to  the  said  M.  A.  M. 
full   possession  of  the  premises  assigned  to  her  as  aforesaid. 

It  is  further  ordered  that  the  said  defendants,  E.  L.  J.,  M.  M.  C, 
C.  M.  F.,  T.  W.  M.,  S.  M.,  V.  M.,  B.  M.  M.,  C.  M.  M.,  J.  A.  M.  and 
J.   E.   M.   pay  to  the  said  M.  A.   M.,  share  and   share  alike,  the  sum 

of  $ ,  being  one-third  of  the  sum  returned  by  said  commissioners 

as  the  net  value  of  said  premises,  from  the  time  of  filing  this  petition 
to  the  assignment  of  said  dower. 

It   is    further   ordered    that   the    said   M.   A.   M.   pay    one-third    of 

the   costs   of   this   suit,   taxed   to   the   sum   of   $ ,    and   that   the 

other  two-thirds  of  said  costs  shall  be  paid  by  the  said  E.  L.  J., 
M.    M.    C,    C.    M.    F.,    T.    W.    M.,    S.    M.,    V.    M.,    B.    M.    M.,    C.    M.    M., 

J.  A.  M.f  and  J.  E.  M.,  share  and  share  alike,  within  days  from 

the  entering  of  this  order,  and  in  default  thereof  execution  issue 
therefor  as  upon  judgment. 

(For  forms  for  answers  and  for  proceedings  in  actions  for  sale  of 
real  estate  where  the  widow  or  widower  joins  in  the  prayer  of  the 
petition  for  a  sale  of  the  real  estate  and  asks  to  be  endowed  out  of 
the  funds  arising  from  the  sale,  see  forms  Nos.  194,  197,  204,  117, 
and  140.  See  also  No.  295  for  assignment  of  dower  by  rents  and 
profits  in  partition.  See  also  No.  294  for  assignment  of  dower  by- 
metes  and  bounds  in  partition). 


613 


FORMS. 


PROCEDURE  TO  SELL  REAL  ESTATE  ENCUMBERED  BY 
INCHOATE  DOWER  OF  AN  INSANE  WIFE. 


FORMS. 

37 3.  Petition  by  husband  for  sale 
of  real  estate  free  of  dower 
of  insane  wife. 

376.  The  summons. 

377.  The    sheriff's   return    of   serv- 

ice  of   summons. 

378.  Motion    for    tbe    appointment 

of  a  guardian  ad  litem. 

379.  Entry  appointing  guardian  ad 

litem. 

380.  Official  notice  by  the  clerk  of 

the  court  to  tbe  committee. 

381.  Answer  of  guardian  ad  litem. 

382.  Motion     for     substitution     of 

members  of  the  committee. 


FORMS 

3S3 


384. 


385. 
386. 

387. 


lleport  of  the  committee  to 
investigate  as  to  the  in- 
sanity of   the  defendant. 

Affidavit  of  citizens  as  to  the 
expediency  of  the  sale  of 
real  estate  as  proposed  in 
petition. 

Entry    appointing   appraisers. 

The  appraisers'  report  of  said 
real  estate  and  their  oath. 

Entry  authorizing  sale  of  real 
free      of      widow's 


estate 
dower. 


■   i 


County.  Ohio. 


No. 


No.  375.     Petition  in  such  case. 

Court  of  Common  Pleas. 

G.  H.,  Plaintiff, 

vs. 
S.  H.,  Defendant. 

Plaintiff  says  that  he  is  the  owner  in  fee  simple  of  the  following 

described   real  estate  in   the  County  of  ,   State  of   : 

(Here  insert   description  of   real   estate);    that  on  the  day 

0f  . t  19 ;  he,  by  contract  in  writing,  sold  said  real  estate 


for  the  sum  of   $- 


acres   of  land  in 


and  agreed  to  take  in  pay- 
-,   and   agreed   to   convey 


to  one  

ment  thereof 

the  same  to  him  by  a  good  and  sufficient  warranty  deed  on  or  before 

the   -  ■   day    of  -  — ,    19 ,   at   which   time   said   

acres  of  land,   and   that   said 


was  to   convey   to    plaintiff   said  

. under  said  contract  entered  into  and  is  now  in  the  possession 

of  said  real  estate  first  hereinabove  described. 

Plaintiff  further  says  that  the  said  defendant,  ,  is  his  law- 
ful wife,  and  that  on  or  about  the  day  of ,  19 , 

she  became  insane  and  has  since  been  sent  to  the   insane  asylum  at 
,  Ohio,  where  she  now  is. 

Plaintiff  therefore  prays  that  the  said  S.  H.  may  be  notified  hereof 
and  that  he  may  be  authorized  to  complete  said  contract  and  that 
said  real  estate  be  released  and  discharged  from  the  contingent  right 
of  dower  of  the  said  S.  H.  in  pursuance  of  the  statute  in  such  case 
made  and  provided,  and  for  such  other  and  further  relief  as  might 
be  necessary  for  the  purpose  as  hereinbefore  set  forth  and  alleged. 

Attorney  for  Plaintiff. 
(The  petition  should  be  verified  as  in  other  cases). 


MERWINE    ON    REAL    ACTIONS.  614 

No.  376.     Summons. 

State  of   Ohio,   County,    ss.: 

To  the  Sheriff  of  County,  Greeting: 

We  command  you  to  notify  S.  H.,  who  is  in  an  insane  asylum 
in    your   county,    that    she    has   been   sued   by    G.    H.    in    the    Court   of 

Common   Pleas,   of  County,   and   that   unless  she   answer   by 

tne   _   day    of   ,    19 ,    the    petition    of    said    plaintiff 

against  her  filed  in  the  clerk's  office  of  said  court,  such  petition  will 
be  taken  as  true,  and  judgment  rendered  accordingly. 

You  will   make  due   return  of  this  summons  on  the  day 

of  ,   19 . 

Witness    my    hand    and    seal    of    said    court    this    day  of 

.  19 .  , 


Cleric. 


No.  377.     Sheriff's  return  of  service  of  summons. 

State  of   Ohio,   County,    ss.: 

Received    this    writ    on    the   day    of  ,    19 ,    at 

o'clock  M.,  and  pursuant  to  its  command  on  the  


day  of  ,  19 ,  I  served  the  within  named  defendant,  S.  H., 

by  delivering  to  her  personally  a  true  and  certified  copy  of  this  writ, 

with   all   the  endorsements  thereon.  r," 

Sheriff  of  County,  0. 

No.  378.     Motion  for  the  appointment  of  a  guardian  ad  litem. 

(Same  caption  as  in  the  petition.) 

The  plaintiff  now  moves  the  court  for  the  appointment  of  

as  guardian  ad   litem   of  the   defendant   herein,   and  of   Dr. 


Dr. >  Dr.  ,  E.  B.,  J.  G.  and  G.  B.  T.,  as  a  committee 

to  examine  as  to  the  insanity  of  the  defendant. 

No.  379.     Entry  appointing  guardian  ad  litem. 

(Same  caption  as  in  the  petition.) 

On  motion   of  the  plaintiff  by  his  attorney,  and  it  appearing  that 

the    defendant    is   an    insane    person,    it    is  ordered    that   be, 

and  he  is,  hereby  appointed  guardian  ad  litem  of  said  defendant;  and 
said  guardian  ad  litem  appears  in  open  court  and  accepts  said  ap- 
pointment. 

And  thereupon  on  motion  it  is  ordered  that  ,  and 

,    all    of    whom    are    physicians,    and    ,    and 

,  all  of  whom  are  good  and  competent  men,  be  and  they  are 

hereby  appointed  a  committee  to  hear  testimony  and  inquire  into  the 
insanity  of  the  defendant,  S.  H.,  and  report  as  to  whether  she  is, 
in  their  opinion,  permanently  insane,  to  this  court  forthwith. 


615  FOKMS. 

No.  380.     Official  notice  by  the  clerk  of  the  court  to  the  com- 
mittee. 

State   of   Ohio,   —  County,   ss.: 

To    ,    and    ,    who    are    physicians,    and 

,  and  ,  you  are  hereby  notified  that  you  have 

been,  by  the  Court  of  Common  Pleas,  within  and  for  said  county  and 
State,  appointed  as  a  committee  to  hear  testimony  and  inquire  into  the 
insanity  and  report  as  to  whether  S.  H.  is  permanently  insane,  in  the 
case  of  G.  H.,  plaintiff,   vs.  S.  H.,  defendant,   in  the  Court  of  Common 

Pleas  of  County,  Ohio,  and  meet  at  the  office  of  on 

the    day    of   ,    19 ,    at    o'clock,    m.,    of 

said  day  for  that  purpose,  and  report  your  proceedings  therein  forth- 
with to  this  court,  now  sitting. 

Witness  my  hand  and  the  seal  of  said  court  at this 

day  of  ,  19 . , 

Clerk  of  said  Court. 

No.  381.     Answer  of  guardian  ad  litem. 

(Same  caption  as  in  the  petition.) 

And  now  comes  ,  one  of  the  attorneys  of  this  court,   who 

was  heretofore  appointed  guardian  ad  litem  for  defendant  in  this 
action,  and  accepts  said  appointment,  and  for  his  answer,  says  that  he 
has  no"  knowledge  of  the  matters  and  facts  and  statements  and  alle- 
gations of  said  plaintiff's  petition,  and  he,  therefore,  denies  each  and 
every  allegation  and  averment  therein  contained  and  demands  proof 
of  the  matters  set  forth  in  said  petition,  and  that  the  rights  of  said 
defendant  be  fully  protected  in  the  premises. 


Guardian  ad  litem  for  Defendant. 

No.  382.     Motion  for  substitution  of  members  of  the  committee. 

(Same  caption  as  in   the  petition.) 

On  motion  to  the  court  by  plaintiff,  the  guardian  ad  litem  consent- 
ing thereto, ,  ,  and  are  substituted 

in   the  places  of  ,   ,  and  on  the 

committee  heretofore  appointed  in  this  case. 

No.  383.     Report  of  the  committee  to  investigate  as  to  the 
insanity  of  defendant. 

(Same  caption  as  in  the  petition.) 

To  the  Court  of  Common  Pleas: 

The  undersigned,  a  committee  appointed  by  the  court  in  the  above 
entitled  case  to  inquire  into  the  fact  of  the  insanity  of  the  defendant, 
S.  H.,  after  being  duly  sworn,  proceeded  to  hear  the  testimony  in  tha 


-  MERWINE    ON    REAL    ACTIONS.  616 

presence   of    plaintiff's   attorney,   and   after   due   considerr  tion   thereof, 

we  find  that  she  is  insane,  and  now  an  inmate  of  the  asylum  of 

County,    Ohio,    under    treatment    and    wholly    disqualified    to 

execute  a  deed  or  other  contract,  and  in  our  opinion  she  is  perma- 
nently insane.  Respectfully  submitted, 

,   M.   D. 

,   M.   D. 

— — ,   M.   D. 


No.  384.     Affidavit  of  citizens  as  to  the  expediency  of  the  sale 
of  real  estate  proposed  in  the  petition. 

(Same  caption  as  above.) 

State  of  Ohio,  —  County,  ss.: 

,  and  ,  being  duly  sworn,  depose  and  say 

they  are  well  acquainted  with  the   real   estate  consisting  of  

acres  of  land,  situated  in  ,  with  a  dwelling  house  and  other 

improvements  thereon,  which  the  plaintiff  has  exchanged  for  

real  estate,  and  in  their  opinion  the  said  acres  are  worth  as 

much  or  more  than  said  real  estate  first  described  in  the  petition. 


S\  orn  to  and  subscribed  before  me  this  day  of  , 

19 .  , 

Notary  Public,  County,  Ohio. 

No.  385.     Entry  appointing  appraisers. 

(Same  caption  as  in  the  petition.) 

The  committee  heretofore  appointed  in  this  case,  having  made  out 
and  filed  their  report  that  in  their  opinion  the  defendant,  S.  H.,  is  per- 
manently insane,  and  the  court  finding  the  allegations  of  the  petition 

to  be  true,  it  is  ordered   that ,  and  ,   three 

judicious  freeholders  of  this  county,  after  being  first  duly  sworn, 
appraise  the  real  estate  in  plaintiff's  petition  mentioned,  to-wit:  (Here 
describe  i-eal  estate),  and  that  they  return  in  writing  the  appraised 
value  of  said   real  estate  to  this  court  forthwith. 

No.  386.     The  appraisers'  report  of  said  real  estate. 

(Same  caption  as  in  the  petition.) 

We,  the  undersigned,  in  obedience  to  the  orders  of  the  court,  and 
after  being  duly  sworn,  proceeded  to  view  and  appraise  the  real  estate 


617  FORMS. 


described   in  said  petition,  and  after   due  consideration,   we   appraise 
the  same  as  follows,  to-wit:    $ . 


The  State  of  Ohio,  County,  ss.: 

The  above  appraisers  were  duly  sworn  by  me  to  make  a  true  and 
impartial   appraisement  of  the  above  described   real  estate. 


Notary  Public, County,  Ohio. 

No.  387.     Entry  authorizing  sale  of  real  estate  free  of  widow's 
dower. 

(Same  caption  as  in  the  petition.) 

The  appraisers,  having  returned  their  report  in  writing  of  the 
value  of  the  real  estate  in  plaintiff's  petition  described,  and  it  appear- 
ing from  the  evidence  offered  by  the  plaintiff  that  the  said  real  estate 
which  the  plaintiff  is  to  secure  in  exchange  for  that  in  the  petition, 
is  of  equal,  or  greater  value  than  that  described  in  the  petition,  and 
that  the  defendant's  rights  therein  will  be  of  equal  or  greater  value 
than  in  the  other,  it  is  therefore  ordered,  adjudged  and  decreed  that 
upon  the  execution  and  delivery  of  a  deed  to  the  plaintiff,  for  the  real 
estate  so  by  him  taken  in  exchange,  he  be  and  he  is  hereby  authorized 
to  execute  and  deliver  a  deed  for  said  real  estate  in  his  petition  de- 
scribed, to  the  purchaser,  unencumbered  of  any  contingent  right  of 
dower  of  the  said  S.  H.,  defendant  therein. 

It  is  further  ordered  that  the  plaintiff  pay  within  thirty  days  from 

this  date,  the  costs  of  this  proceeding,  including  $ due  to  the 

members  of  the  committee  and  appraisers  hereinbefore  appointed  in 
this  case,  and  in  default  thereof  that  execution  issue  therefor. 


CHAPTER  XYI. 

THE  LAW  AND  PROCEDURE   BY  WHICH  TITLE   TO 

REAL  ESTATE  IS  TRANSFERRED  BY 

CONDEMNATION   PROCEEDINGS. 


SECTION. 

502.  Constitutional     provisions    as 

to  the  inviolability  of  pri- 
vate property. 

503.  Necessity  for  the  right  of  emi- 

nent domain. 

504.  Power  of  municipalities  to  ap- 

propriate property  for  pub- 
lic uses. 

505.  For   what    purposes    a   munic- 

ipality may  appropriate 
property. 

506.  In  what  cases  property  may  be 

appropriated  outside  a  mu- 
nicipality— Proviso  as  to 
cemeteries. 

507.  The  resolution  of  council  and 

notice  of  intent  to  appro- 
priate. 

508.  In  what  courts  the  application 

may  be  made. 

509.  The  service  of  notice  to  own- 

ers of  property. 

510.  The   court    must   fix   time    for 

the  inquiry. 

511.  A  view   of  the   premises   may 

be  required. 

512.  Guardian  ad  litem  appointed, 

when. 

513.  How  jury  to  return  assessment 

— Manner  of  conducting  the 
case. 

514.  Verdict  in  whole  or  in  part. 

515.  Orders  as   to   payment  or   de- 

posit of  assessment — Order 

as  fco  interpleader. 
51(1.     The    manner    in    which    costs 

are  assessed  and  paid. 
HIT.     How    interested    parties    may 

give  bond  in  such  cases. 
518.     Review    proceedings  —  Appeal 

to  court  of  common  pleas. 


SECT 

519. 


520. 


521. 


522. 
523. 

524. 

525. 
52G. 

527. 

528. 

529. 
530. 

531. 
532. 
533. 


iox. 

'.fleet  of  neglect  to  pay  or 
take  possession  in  six 
months. 

What  law  governs  appropria- 
tion of  private  property  by 
corporations. 

Probate  lias  exclusive  juris- 
diction to  make  inquest 
for  amount  of  compensa- 
tion to  owner  in  appropria- 
tion cases. 

In  what  cases  appropriation 
of  real  estate  can  be  made 
by   a   corporation. 

How  appropriation  of  prop- 
erty of  a  minor,  idiot,  im- 
Itecile  or  insane  person  may 
be  made. 

What  the  petition  for  such 
appropriation  must  con- 
tain, and  in  what  court  the 
same  must   be  filed. 

In  what  county  the  petition 
must  be  filed. 

Summons — Its  command  and 
service   thereof. 

Service  by  publication. 

Jurisdictional  questions  to  be 
first   determined. 

Jurors  to  be  drawn  from  the 
box  and  venire  issued. 

Who  entitled  to  a  separate 
trial,  and  how  trial  con- 
ducted. 

The  court  may  allow  any 
amendment. 

Time  of  trial,  adjournments 
and  discharge  of  juries. 

How  panel  to  be  filled — -Ju- 
rors to  l>e  interrogated  by 
court. 

018 


619       TITLE  TRANSFERRED   BY   CONDEMNATION    PROCEEDINGS.       §  502 


549. 


examined       550 


is    partly 
to    be    ap- 


SECTIO.N. 

534.     Challenges  to  jurors,  and  how 
vacancies  in  jury  box  filled. 

The   oath    to   be    administered 
to  jury. 

The  form  of  writ,  to  sheriff. 

.Judge     must     deliver     certain 
copies   to  sheriff, 

Witnesses  may  b« 
before  jury. 

When  a  structure 
on  land  sought 
propriated. 

Verdict,       and       confirmation 
thereof. 

When     and     how    corporation 
may   have  possession. 

When     and     how    corporation 
may  abandon  proceeding. 

When  action  may  be  brought 
for  costs  and  expenses. 

New     trial — P  rocee  dings 
thereon. 

Either  party  may  file  a  peti- 
tion  in  error. 

Proceedings     in    the    common 
pleas  on  error. 

How  school   land  may  be  ap- 
propriated. 


535. 

53(i. 
537. 

538. 

53!). 


540. 


541. 


542. 


543. 


544. 


545. 


546. 


547. 


SECTION. 

548.  When  proceedings  to  appro- 
priate private  property 
may  lie  commenced  in  court 
of  common  pleas. 

Court  to  appoint  attorney  for 
party  absent  or  under  dis- 
ability. 

Conflicting  claims  not  to  be 
passed  upon. 

Put  to  be  adjudicated  in  the 
common    pleas. 

Such  proceeding  a  civil  action. 

Unfinished  roadbed  of  railroad 
company  may  be  condemned. 

Proceedings  in   such  case. 

In  what  couit  such  proceed- 
ings may  be  commenced. 

Proceedings  when  land  is  held 
without  agreement  by  a 
corporation. 

Summons  in  such  case — Judg- 
ment and  execution. 

When  injunction  may  issue 
against   corporation. 

Fees  of  witnesses,  officers  and 
probate  judge,  and  how 
costs   adjudged. 

When  costs  may  be  appor- 
tioned. 

When  this  chapter  d^es  not 
apply. 


551. 

552. 
553. 

554. 
555. 

556. 


557. 
558. 
559. 

560. 
561. 


Sec.  502.     Constitutional  provisions  as  to  the  inviolability  of 
private  property. 

The  Federal  Constitution  provides  that  private  property 
shall  not  be  taken  for  public  use,  without  just  compensation.1 

The  Constitution  of  this  State  provides  that  private  property 
shall  ever  be  held  inviolate  but  subservient  to  the  public  wel- 
fare. When  taken  in  time  of  war  or  other  public  exigency  im- 
peratively requiring  its  immediate  seizure  or  for  the  purpose  of 
making  or  repairing  roads,  which  shall  be  open  to  the  public, 
without  charge,  a  compensation  shall  be  made  to  the  owner,  in 
money,  and  in  all  other  cases  where  private  property  shall  be 
taken  for  public  use,  a  compensation  therefor  must  first  be 
made  in  money,  or  first  secured  by  a  deposit  of  money;  and 


i  Article  V  of  the  Amendments  to  the  U.  S.  Constitution. 


§§503,504 


MERWINE    ONT    REAL    ACTIONS. 


620 


such  compensation  must  be  assessed  by  a  jury  without  deduc- 
tion from  the  benefit  to  any  property  by  the  owner.2 


Sec.  503.     Necessity  for  the  right  of  eminent  domain. 

This  question  confronts  all  government  at  the  threshold  of 
its  existence.  Without  it  there  can  be  no  government ;  for  no 
place  could  be  found  for  the  exercise  of  the  legislative,  judicial 
or  executive  powers  of  government,  nor  could  there  be  public 
ways  for  the  exercise  of  social  and  commercial  relations,  nor 
even    fortifications   for   the    common    defense.3 

The  power  therefore  exists  in  the  sovereignty  of  the  people, 
independent  of  any  constitutional  provisions  and  it  is  a  political 
rather  than  a  judicial  power  that  exercises  the  right.4 

The  statutes  fully  set  forth  the  manner  of  procedure  in 
this  State.  The  prescribed  limits  of  this  book  forbid  more  of  a 
discussion  than  to  give  the  statutes  with  brief  annotations. 

Sec.  504.     Power  of  municipalities  to  appropriate  property  fcr 
public  uses. 
All  municipal  corporations  shall  have  the  following  special 
powers,  which   shall  be   exercised   in   the   manner  hereinafter 
provided :     1st,  to  appropriate  property  for  public  purposes.5 


2  See.  10,  Article  I,  Constitution 
of    Ohio. 

3  Sandusky  v.  Wilbur,  7  O.  S. 
486:  Mansfield  v.  Barlett,  05  O.  S. 
451. 

*  Emig  v.  Com.,  5  N.  P.  471: 
Railroad  v.  Sundry  Persons,  7  W. 
L.  J.  265;  Giesy  V.  Cincinnati,  4 
O.   S.  326. 

sGen'l  Code.  §3677  (R.  S. 
§1536-102).  As  to  the  right  to 
take  and  hold  property  until  a  jury 
ha--  assessed  compensation,  see  Gar- 
vin v.  Columbus,  5  N.  P.  237.  The 
power  of  eminent  domain  must  be 
strictly  construed.  Harbick  v.  To- 
ledo, mi  s.  210.  Except  in  case 
of  bad  faith  or  abuse  of  power, 
courts  can  not  restrain  amount  of 
bind  to  be  taken.  Iron,  etc..  v. 
[ronton,  19  O.  S.  299;  Giesy  v.  Cin- 
cinnati, j  O.  S.  :sns.  in  an  action 
for    damages    for   land    already   ap- 


propriated, the  same  rule  applies 
as  where  compensation  is  assessed 
by  a  jury.  Dodson  v.  Cincinnati, 
34  O.  S.  276.  Owner  must  be  com- 
pensated by  an  assessment  of  dam- 
ages made  by  a  jury  where  a  mu- 
nicipality widens  a  street.  Youngs- 
town  v.  Moore,  —  0.  S.  — .  Where 
a  private  sewer  is  taken  for  public 
purposes,  a  jury  must  award  com- 
pensation. McDonald  v.  Cincinnati, 
4  N.  P.  253.  The  amount  of  dam- 
ages awarded  in  an  appropriation 
proceeding  may  be  assessed  hack  by 
the  front  foot  upon  abutting  prop- 
erty. Norwood  v.  Ogden,  15  C.  C. 
530.  For  cases  on  evidence  admis- 
sible as  to  damages,  see  Gibson  v. 
Norwalk,  13  C.  C.  431:  Lorain  v. 
Lenning,  3  O.  D.  624;  as  to  whether 
special  benefits  may  be  allowed,  see 
Little,  etc.,  v.  Collett,  6  0.  S.  183. 


621       TITLE   TRANSFERRED    BY   CONDEMNATION   PROCEEDINGS.       §  505 

Sec.  505.     For  what  purposes  a  municipality  may  appropriate 
property. 

All  municipal  corporations  have  power  to  appropriate,  enter 
upon  and  hold  real  estate  within  their  corporation  limits, 
for  the  following  purpose  :  (a)  For  opening,  widening,  straight- 
ening, changing  the  grade  of  and  extending  the  streets  and  all 
o'.her  public  places,  and  for  this  purpose  the  corporation  may 
appropriate  the  right  of  way  across  railway  tracks  and  lands 
held  by  railway  companies  where  such  appropriation  will  not 
unnecessarily  interfere  with  the  reasonable  use  of  the  property 
so  crossed  by  such  improvement ;  and  for  obtaining  material 
for  the  improvement  of  streets  and  for  other  public  places, 
(b)  For  parks,  park  entrances,  boulevards,  market  places,  and 
children's  play  grounds,  (c)  For  public  halls  and  offices,  and 
for  all  buildings  and  structures  required  for  the  use  of  any 
department,  (d)  For  prisons,  work  houses,  houses  of  refuge 
and  correction  and  farm  schools.  (e)  For  hospitals,  pest 
houses,  reformatories,  crematories,  and  cemeteries,  (f)  For 
levees,  wharves  and  landings.  (g)  For  bridges,  aqueducts, 
viaducts  and  approaches  thereto,  (h)  For  libraries,  university 
sites  and  grounds  for  the  same,  (i)  For  constructing,  opening, 
excavating,  improving  or  extending  any  canal  or  water  "course 
located  in  whole  or  in  part  within  the  limits  of  the  corporation, 
or  adjacent  and  contiguous  thereto,  and  wmich  is  not  owned  in 
whole  or  in  part  by  the  State,  or  by  a  company  or  individual 
authorized  by  law  to  make  such  improvements,  (j)  For  sewers, 
drains,  ditches,  public  urinals,  bath  houses,  water  closets,  and 
sewage  and  garbage  disposal  plants  and  farms,  (k)  For  water- 
works, natural  and  artificial  gas  and  electric  lighting,  heating 
and  power  plants,  and  for  supplying  the  products  thereof.6 

Sec.  506.     In  what  cases  property  may  be  appropriated  outside 
a  municipality — Proviso  as  to  cemeteries. 

In  the  appropriation  of  property  for  any  of  the  purposes 
named  in  the  preceding  section,  the  corporation  may,  whenever 
the  same  is  reasonably  necessary,  acquire  property  outside  the 
limits  of  the  corporation;  but  no  lands  can  be  appropriated  or 
obtained  for  public  cemeteries  within  two  hundred  yards  of  any 

oGen'l     Code,      §3677      (R.     S.    M53G-103). 


§§  507,  508  MERWINE    ON    REAL    ACTIONS.  622 

dwelling  house,  without  the  consent,  in  writing,  of  the  owner  of 
the  tract  of  land  on  which  such  dwelling  house  may  be  situated.7 

Sec.  507.     The  resolution  of  council  and  notice  of  intent  to 
appropriate. 

Whenever  it  is  deemed  necessary  to  appropriate  property, 
council  must  pass  the  resolution,  declaring  such  intent,  defining 
the  purpose  of  the  appropriation,  and  setting  forth  a  pertinent 
description  of  the  land  desired  to  be  appropriated;  and  for 
waterworks  purposes  the  council  may  appropriate  such  prop- 
erty as  it  may  determine  to  be  necessary ;  and  immediately 
upon  passage  of  such  resolution,  declaring  such  intention,  for 
which  but  one  reading  is  necessary,  the  mayor  is  required  to 
cause  written  notices  thereof  to  be  given  to  the  owner,  person  in 
possession  of,  or  who  have  an  interest  of  record  in  every  piece 
of  property  sought  to  be  appropriated,  or  to  his  authorized  agent, 
and  such  notice  must  be  served  by  a  person  designated  for  the 
purpose,  and  return  made  in  the  manner  provided  by  law  for 
the  service  and  return  of  summons  in  civil  actions,  and  in  case 
said  owner,  persons  or  other  agents  can  not  be  found,  notice 
must  be  given  by  publication  once  a  week  for  three  consecutive 
wreeks  in  a  newspaper  of  general  circulation  in  the  corpora- 
tion; and  council  may  thereupon  cause  an  ordinance  by  the 
vote  of  two-thirds  of  all  members  elected  thereto  directing  said 
appropriation  to  proceed.8 

Sec.  508.     In  what  courts  the  application  may  be  made. 

Upon  passage  of  the  aforesaid  ordinance,  the  solicitor  is 
required  to  make  application  to  the  court  of  common  pleas  or 
to  a  judge  thereof  in  vacation,  to  the  probate  court,  or  to  an 
insolvency  court  in  the  county  in  which  the  land  sought  to  be 
taken  is  located,  which  application  must  describe  as  correctly  as 

7Gen'l      Code,      §  Ml?,      (R.      S.  §  2642,  see  Krumberg  v.  Cincinnati, 

§1536-104).     Nee  No.  388   and   fol-  29  O.  Gen'l  Code,  §69;  Tyler  v.  Co- 

lowing  for  form  of  petition  and  all  lumbus,    (!    ('.    C.   224;    Caldwell    v. 

writ-,     orders,     processes,     decrees,  Carthage,  4!i  O.  S.  ;i.'!4.     Recommen- 

verdicts    ami    procedure    in   condem-  dation  of  board  of  improvements  is 

nation   by    a    municipality   of   prop-  not    necessary    to    |>ass    ordinance, 

erty   for   public  uses.  Gamble   v.   Wise,    3    W.    1..    P».    430. 

sGen'l      (ode,      J  3679      (P.      P.  As  to  question   of  notice  to  owner, 

§  1536-105.       Whether     preliminary  sec    Hay    v.   Stimmel,    7   O.   D.   380; 

ordinance    is    necessary   under  R.   S.  Firmer  v.  Cincinnati,  4  N.  P.  182. 


t>23       TITLE  TRANSFERRED   BY   CONDEMNATION    PROCEEDINGS.       §  509 

possible  the  land  to  be  appropriated,  the  object  proposed,  and 
the  name  of  the  owner  of  each  lot  or  parcel  thereof.9 

Sec.  509.     The  service  of  notice  to  owners  of  property. 

Notice  of  the  rime  and  place  of  such  application  must  be 
given  in  the  ordinary  manner  of  serving-  legal  process  to  all 
agencies,  owners  or  agents  of  owners  resident  in  the  State, 
whose  place  of  residence  is  known,  and  to  all  others  by  publish- 
ing the  substance  of  the  application,  with  a  statement  of  the 
time  and  place  at  which  it  is  to  be  made,  once  a  week  for  three 
weeks  next  preceding  the  time  of  the  application  in  some  news- 
paper of  general  circulation  in  the  county.10 

Sec.  510.     The  court  must  fix  time  for  the  inquiry. 

If  it  appears  that  such  notice  has  been  served  five  days  before 
the  time  of  application  or  has  been  duly  published,  or  that 
such  notice  has  been  waived,  the  court  must  set  a  time  for 
the  assessment  of  compensation  by  a  jury ;  provided,  that  the 
same  may  be  made  at  a  special  term  of  court,  and  the  jury  must 
be  drawn  and  trial  proceed  as  in  other  civil  actions.11 

Sec.  511.     A  view  of  the  premises  may  be  required. 

A  view  of  the  premises  must  be  ordered  when  desired  by  the 
jury  or  demanded  by  any  party  to  the  proceedings.12 

Sec.  512.     Guardian  ad  litem  appointed,  when. 

If,  at  the  time  of  the  application,  it  appear  that  any  of  the 
owners  of  the  property  sought  to  be  taken  are  infants  or 
insane,  and  that  they  have  no  guardian,  a  guardian  ad  litem 
must  be  appointed  in  their  behalf;  and  no  delay  in  the  pro- 
ceedings shall  be  occasioned  by  doubt  as  to  the  ownership  of 
any  property,  or  as  to  the  interests  of  the  respective  owners, 
but  in  such  cases  the  court  must  require  a  deposit  of  the  money 

» Gen'l      Code,      §3081       (R.      S.  tion   will   not   invalidate  as   against 

§  1536-106).  collateral  attack.     Ry.  v.  Belle  Cen 

iMien'I      Code.      §3082      (R.      R.  ter.  48  O.  S.  273.    Notice  to  a  mort- 

§  1536-107).     Where  owner  of  prop-  »apee  is  necessary.     Harrison  v.  Sa- 

erty    dies    during    the    pendency    (if  bina,   1    C.  C.  40. 

the    action    to    condemn,    the    action  i'Gen'1      Code.      §3083       ( R.      S. 

should  he  revived  in  the  same  man-  §  1530-108). 

ner  as  in  other  cases.     Rv.  v.  Rohm,  isGen'l      Code,.   §3084      (R.      8. 

29    O.    S.    033.      Service    by   publica-  §1530-109). 


§§513,514 


MERWINE    ON    REAL    ACTIONS. 


024 


allowed  as  compensation  for  the  whole  property  or  the  part  in 
dispute ;  and  in  all  cases  as  soon  as  the  corporation  has  paid  the 
compensation  assessed,  or  secured  its  payment  by  a  deposit  of 
money  under  the  order  of  the  court,  possession  of  the  property 
may  be  taken.13 

Sec.  513.     How  jury  to  return  assessment — Manner  of  conduct- 
ing the   case. 

The  assessment  must  be  in  writing,  signed  by  the  jury, 
and  must  be  so  made  that  the  amount  payable  to  the  owners 
of  each  lot  or  parcel  of  land  may  be  ascertained.  The  owners 
have  the  right  to  open  and  close  the  case.  When  a  building  or 
structure  is  situated  partly  upon  the  land  to  be  appropriated 
and  partly  upon  adjoining  land,  and  such  structure  can  not  be 
divided  upon  a  line  between  such  lands,  without  manifest  in- 
jury, the  jury  in  assessing  compensation  to  any  owner  of  the 
land,  is  required  to  assess  the  value  of  the  same,  exclusive  of 
the  structure,  and  make  a  separate  estimate  of  the  value  of  the 
structure;  the  owner  of  the  structure  may  elect  to  retain  the 
same  and  remove  it,  or  to  accept  the  value  thereof  as  estimated 
by  the  jury ;  if  he  fails  to  make  such  election  within  ten  days 
from  the  final  determination  of  the  cause,  he  will  be  deemed 
to  have  elected  to  accept  the  value  of  the  structure  as  fixed 
by  the  jury.14 

Sec.  514.     Verdict  in  whole  or  in  part. 

The  jury  must  be  sworn  to  make  the  whole  inquiry  and 
assessment,  but  may  return  a  verdict  as  to  part  and  be  dis- 
charged as  to  the  rest,  in  the  discretion  of  the  court ;  and  in 
case  a  jury  is  discharged  from  rendering  a  verdict  in  wdiole  or 
in  part,  another  must  be  drawn  and  impaneled  at  the  earliest 
convenient  time,  who  is  required  to  make  the  whole  inquiry 
and  assessment,  or  the  part  not  made.15 


'-Cen'l      Code.      §3684      (R.      S. 
§  1536-10!)). 

^Gen'l  Code,  §3684  (R.  S. 
§  1536-109).  Formerly,  corpora- 
tions had  the  right  to  open  and 
close  the  case.  Neff  v.  Cincinnati, 
32  0.  S.  215.  As  to  the  measure 
and  elements  of  compensation,  see 
Foote  v.  Cincinnati.  11  0.  408 
Oiesv  v.  Cincinnati,  4  0.  S.  309 
Cleveland,  etc..  v.  Ball.  5  0.  S.  568 


Little  v.  Collett,  6  0.  S.  183: 
Hatch  v.  Ry.,  18  O.  S.  92;  Goodin 
v.  Canal.  18  0.  S.  109;  Railroad  v. 
Zinn,  18  O.  S.  417.  As  to  opinion 
of  witness  as  to  value  of  the  land, 
see  Ibid.  Witness  can  not  give 
opinion  as  to  amount  of  damage. 
Atlantic  v.  Campbell.  4  0.  S.  583. 
"Gen'l  Code,  §3689  (R.  S. 
§  1536-110). 


625       TITLE  TRANSFERRED   BY   CONDEMNATION   PROCEEDINGS.       §  515 

Sec.  515.  Orders  as  to  payment  or  deposit  of  assessment — 
Order  as  to  interpleader. 
The  court  must  make  such  orders  as  to  payment,  deposit  or 
distribution  of  the  amount  assessed  as  may  seem  proper,  may 
require  adverse  claimants  to  all  or  any  part  of  the  money  or 
property  to  interplead  and  fully  determine  their  rights  in  the 
same  proceeding,  and  may  direct  the  time  and  manner  in  which 
possession  of  the  property  condemned  must  he  taken  or  de- 
livered, and  may.  if  necessary,  enforce  any  order  giving  pos- 
session.10 


Sec.  516.     The  manner  in  which  costs  are  assessed  and  paid. 

The  costs  of  the  inquiry  and  assessment  must  be  paid  by 
the  corporation,  and  all  other  costs  taxed  as  the  court  may 
direct ;  provided,  that  at  or  after  the  time  of  making  the 
application  the  corporation  may  offer  to  confess  judgment 
for  an  amount  to  be  stated,  and  the  costs  then  made,  in  favor  of 
any  owner  who  in  any  manner  enters  appearance  or  upon 
whom  or  whose  agent  personal  service  may  be  made ;  where- 
upon if  such  owner  refuse  to  accept  such  offer,  and  on  the  trial 
does  not  recover  more,  he  will  be  required  to  pay  all  costs 
accruing  after  the  offer,  and  an  offer  so  made  shall  be  governed 
by  the  provisions  of  Gen'l  Code,  §  11395  (R.  S.  §  5142). 17 

Sec.  517.  How  interested  parties  may  give  bond  in  such  cases. 
Any  person  may,  before  or  after  the  passage  of  an  ordinance 
for  opening  a  street  or  other  public  highway,  execute  his  bond 
payable  to  the  corporation  to  the  acceptance  of  council,  con- 
ditioned for  the  payment  of  all  damage  which  may  be  assessed 
by  the  jury ;  and  such  bond  will  be  good  in  law,  and  if  such 
person  pay  or  deposit  according  to  the  order  of  the  court,  then 
such  street  or  other  highway  must  be  opened ;  or  the  corpora- 
tion may  at  its  discretion  make  such  payment  or  deposit,  and 
collect  by  law  the  amount  of  such  damages  of  such  person  or 
his  sureties.18 

i«  Gen'l     Code,      §3690      (R.      S.  is  Gen'l     Code,      §3694      (R.      S. 

§1536-111).  §1536-113). 

iUien'1     Code,      §3693      (R.      S. 
§  1530-112). 


§§518,519  MERWINE   ON    REAL    ACTIONS.  626 

Sec.  518.     Review  of  proceedings — Appeal  to  court  of  common 
pleas. 

The  municipal  corporation,  or  the  owner  of  any  property, 
the  value  of  which  has  been  assessed  as  herein  provided,  has 
the  right  to  prosecute  error  as  in  other  civil  actions;  provided 
that  the  trial  court  may,  upon  proper  terms,  sustain  the  execu- 
tion of  any  order;  but  in  all  cases  where  the  municipal  corpora- 
tion pays  or  deposits  the  compensation  and  costs,  the  right  to 
take  and  use  the  property  condemned  can  not  be  affected  by 
any  such  review. 

Where  the  proceeding  is  had  in  the  probate  court  or  in  the 
insolvency  court,  any  party  interested  in  the  inquiry  and 
assessment  may  take  an  appeal  to  the  court  of  common  pleas; 
and  thereupon  the  same  proceedings  must  be  had  as  if  the 
application  had  been  originally  made  in  that  court,  except  that 
the  corporation  can  not  be  required  to  give  notice  of  its  appli- 
cation, and  the  inquiry  and  assessment  must  be  limited  to  the 
case  of  the  party  taking  the  appeal;  and  the  court  must  make 
such  orders  for  the  payment  of  the  costs  accruing  upon  the 
appeal  as  may  seem  equitable  and  just.19 

Sec.  519.     Effect  of  neglect  to  pay  or  take  possession  in  six 
months. 

When  a  municipal  corporation  makes  an  appropriation  of 
property,  and  fails  to  pay  for  or  take  possession  of  the  same 
within  six  months  after  the  assessment  of  compensation  shall 
have  been  made,  its  right  to  make  such  appropriation  on  the 
terms  of  the  assessment  so  made  will  cease  and  determine,  and 
any  lands  so  appropriated  will  be  relieved  from  all  encumbrance 
on  account  of  any  of  the  proceedings  in  such  case  and  a  judg- 
ment or  order  of  the  court  directing  such  assessment  to  be  paid 
shall  cease  to  be  of  any  effect,  except  as  to  the  cos^s  adjudged 
against  the  corporation;  and  upon  motion  of  any  defendant, 
said  costs  may  be  relaxed  and  a  reasonable  attorney's  fee  be 
paid  to  the  attorney  of  such  defendant,  which,  together  with 
any  other  proper  expense  incurred  by  such  defendant,  may  be 
included   in  such   costs.20 

i»Gen'l     Code,      §3695      (R.      S.  20  Gen'l      Code,     §3697      (R.     S. 

§1530-114).  §1536-115). 


627       TITLE  TRANSFERRED   BY   CONDEMNATION    PROCEEDINGS.       §  520 

Sec.  520.     What  law  governs  appropriation  of  private  property 
by  corporations. 
Appropriations  of  private  property  by  corporations  must  be 
made  according  to  the  provisions  of  title  2,  chapter  8,  Revised 
Statutes  of  Ohio.21 

Sec.  521.     Probate  has  exclusive  jurisdiction  to  make  inquest 
for   amount   of  compensation  to  owner  in   appropriation 
cases. 
The    probate    court   has   exclusive   jurisdiction   to    make    in- 
quests of  the  amount  of  compensation  to  be  made  by  owners  of 
real  estate  when  appropriated  by  any  corporation  legally  au- 
thorized to  make  such  appropriation.22 

Sec.  522.     In  what  cases  appropriation  of  real  estate  can  be 
made  by  a  corporation. 

Appropriation  can  only  be  made  when  the  corporation  is 
unable  to  agree  with  the  owner  or  his  guardian  or  trustee  as 
to  the  compensation  to  be  paid  for  the  property,  or  easement 
or  interest  therein,  sought  to  be  appropriated,  or  when  the 
owner  is  incapable  of  contracting  in  person  or  by  agent,  and 
has  no  guardian  or  trustee,  or  is  unknown,  or  his  residence  is 
beyond  the  State,  or  unknown.23 

Sec.  523.     How  appropriation  of  property  of  a  minor,  idiot, 
imbecile  or  insane  person  may  be  made. 

Whenever  under  the  chapter  relating  to  appropriation  of 
private  property  by  corporations,  the  property  of  any  minor, 
idiot,  imbecile  or  insane  person,  or  any  easement  or  interest 
therein  is  sought  to  be  appropriated  by  a  corporation,  and  there 
is  a  legally  appointed  guardian  of  the  person  and  estate  or 
of  the  estates  or  trustee  of  such  minor,  idiot,  imbecile  or  insane 
person,  and  the  said  guardian  has  agreed  with  said  corporation 

si  Gen'l     Code.     §11038     (R.     S.  jail,    etc..     see    Gen'l     Cod-.     §2446 

§0414).     Under  this  section  the  ap-  (R.  S.  §879).     As  to  appropriation 

propriationa     provided     for     under  of     property     for     sas     or     el  ctric 

§  3440    may    he    made.      Street    Ey.  works,    see    Gen'l    Code.    §  3990    (  R. 

v.   Street   Ry.,   50   O.   S.   603.     Gen'!  S.    §  1536-576). 

Code,  §  10095  et  seq.  (R.  S.  §3573).  -•-'(Jen']     Code      §10400      (11.     S. 

provides    for   appropriation   of   land  §5-24). 

by  cemetery  association.     As  to  ap-  -*  Gen'l     Code,     §11039      (R.     S. 

propriation  of  land  for  court  house,  §6415). 


§  52*1  MERWINE    ON    REAL    ACTIONS.  628 

upon  the  amount  of  compensation  to  be  paid  for  such  property, 
easement,  or  interest  therein,  he  may  file  with  the  probate 
court  of  the  county  wherein  said  property  is  situated,  a  written 
application  for  authority  to  convey  to  said  corporation  the 
said  property  or  interest ;  which  application  must  fully  describe 
the  property,  right,  easement  or  interest  therein,  sought  to  be 
conveyed,  and  must  fully  set  out  the  price  agreed  to  be  paid 
for  the  same.  The  probate  judge  must  order  said  guardian  to 
give  such  notice  as  said  judge  may  deem  reasonable,  to  the 
said  ward,  of  the  filing  of  the  said  application,  and  of  the  time 
set  for  the  hearing  of  the  same.  At  the  time  set  for  the  hearing 
of  said  application,  if  the  judge  finds  that  notice  was  given  as 
^ordered,  of  the  time  set  for  the  hearing  of  the  same,  and  that 
the  price  to  be  paid  is  reasonable  and  just,  and  that  the  said 
conveyance  would  be  to  the  best  interest  of  said  ward,  he  is 
required  to  order  the  said  guardian  to  make  and  execute  a 
deed  to  said  corporation  for  said  property  or  interest  upon  the 
payment  of  the  said  price  agreed  upon  by  said  guardian  and 
said  corporation.24 

Sec.  524.  What  the  petition  for  such  appropriation  must  con- 
tain and  in  what  court  the  same  must  be  filed. 
In  any  such  case  the  corporation  may  file  with  the  probate 
judge  a  petition,  verified  as  in  a  civil  action,  containing  a 
specific  description  of  each  parcel  of  property,  interest  or  right, 
within  the  county,  sought  to  be  appropriated,  the  work,  if  auy, 
to  be  constructed  thereon,  the  use  to  which  the  same  is  to  be 
applied,  the  necessity  for  the  appropriation,  the  name  of  the 
owner  of  each  parcel,  if  known,  or  if  not  known,  a  statement  of 
that  fact,  the  names  of  all  persons  having  or  claiming  an  interest, 
legal  or  equitable,  in  the  property,  so  far  as  the  same  can  be 
ascertained,  and  a  prayer  for  the  appropriation  of  the  prop- 
erty.'-' 

s+Olen'l     Code,     §11030      (R.     S.  The    legal    record    existence    of    the 

§  04 1  -">  i .  corporation    must    l>e    shown    before 

25  Gen'l     Code,     §11042     (R.     S.  an  appropriation  of  property  can  be 

§0416).     See    No.  408   for  form  of  made  for  it.     Railroad  v.  Sullivant, 

petition,     notice,    summons,     return.  o    O.   S.  276:   Atkinson  v.   Railroad, 

orders,     writs,     judgments,     verdict  15  O.  S.  21;  Powers  v.  Railroad,  33 

and    procedure.      The   probate   court  O.    S.    420.      As    to    what   facts    the 

has    only    such    jurisdiction    as    is  petition   must  set   forth,   see  In  re 

expressly      conferred      by      statute.  Cieorge,  5  C.  C.  98. 
Railroad  v.  Marshall,  11  O.  S.  407. 


629       TITLE  TRANSFERRED   BY   CONDEMNATION   PROCEEDINGS.       §  525 

Sec.  525.     In  what  county  the  petition  must  be  filed. 

The  petition  may  include  one  or  more  of  the  parcels  of 
property,  rights,  or  interest  in  the  county  in  which  it  is  filed ; 
and  when  any  such  parcel,  right  or  interest  is  situated  in  two 
or  more  counties,  the  petition  may  be  filed  in  either  of  the 
counties  in  which  the  owner  is  resident,  and  if  no  owner  is 
resident  therein,  it  may  be  filed  in  either.20 

Sec.  526.     Summons — Its  command,  and  service  thereof. 

Upon  the  filing  of  a  precipe  therefor,  the  probate  judge  must 
issue  summons  for  the  owners  and  persons  named  in  the  peti- 
tion as  residents  of  the  State  and  having  an  interest,  which 
may  be  directed  to  the  sheriff  of  any  county,  and  must  com- 
mand him  to  notify  the  persons  named  therein  of  the  filing 
of  the  petition,  and  to  appear  thereto  at  a  time  to  be  fixed  by 
the  judge,  and  named  therein,  not  less  than  five  or  more  than 
fifteen  days  from  the  date  thereof,  and  which  must  be  served 
and  returned  as  in  a  civil  action.  When  a  writ  is  returned  "not 
summoned,"  other  writs  may  be  issued,  until  the  parties  are 
duly  summoned.27 

Sec.  527.     Service  by  publication. 

When  a  person  having  an  interest  is  unknown,  or  his  resi- 
dence is  beyond  the  State,  or  unknown,  the  corporation  may 
make  service  by  publication  against  him,  by  publishing  in  a 
newspaper  of  general  circulation  in  the  county  where  the  peti- 
tion is  filed,  for  four  consecutive  weeks,  a  notice  containing  a 
summary  statement  of  the  object  and  prayer  of  the  petition, 
so  far  as  it  relates  to  the  property  of  the  person  thus  to  be 
notified,  the  court  in  which  it  is  filed,  and  the  time  Avhen  such 
person  is  to  appear  thereto,  not  less  than  ten  or  more  than 
twenty  days  after  the  last  publication;  and  the  fact  of  publi- 
cation may  be  proved  by  the  affidavit  of  any  person  knowing 
the  same.28 

Sec.  528.     Jurisdictional  questions  to  be  first  determined. 

On  the  day  named  in  any  summons  first  served,  or  publication 
first   completed,    the   probate   judge   is   required   to   hear   and 

seGen'l     Code,     §11043      (R.     S.  27  Gen'l     Code,     §11044      (R.     S. 

§6417).     As   to  the  rights  of  each  §6418). 

of  the  defendants  to  a  separate  jury,  28  Gen'l     Code,     §11045      (R.     S. 

see  Gesy  v.  Railroad,  4  O.  S.  308.*  §6419). 


§§  529-531  MERWINE    ON    REAL    ACTIONS.  630 

determine  the  questions  of  the  existence  of  the  corporation,  its 
right  to  make  the  appropriation,  its  inability  to  agree  with  the 
owner,  and  the  necessity  for  the  appropriation.  Upon  these 
questions  the  burden  of  proof  will  be  upon  the  corporation,  and 
any  interested  person  will  be  heard.29 

Sec.  £29.     Jurors  to  be  drawn  from  the  box,  and  venire  issued. 

If  the  judge  determines  these  questions  for  the  corporation, 
as  to  any  or  all  of  the  property,  and  persons  interested  therein, 
he  must  issue  an  order  to  the  clerk  and  sheriff  to  draw  sixteen 
names  from  the  jury  box,  as  in  other  cases,  and  within  two 
days  after  the  receipt  of  the  same,  they  must  execute  the 
order,  and  the  clerks  are  required  forthwith  to  return  it  to 
the  probate  judge,  with  a  list  of  the  names  drawn  indorsed 
thereon  ;  and  the  judge  must  issue  to  the  sheriff  a  venire  for 
the  jurors  so  drawn  to  attend  at  his  office,  at  a  time  to  be  fixed 
by  him.  and  named  in  the  writ,  not  exceeding  ten  days  from  the 
date  thereof,  which  shall  be  served  and  returned  as  in  other 
cases.30 

Sec  530.     Who  entitled  to  a  separate  trial,  and  how  trial  con- 
ducted. 

The  owners  of  each  separate  parcel,  right  or  interest,  are 
entitled  to  a  separate  trial  by  jury,  verdict  and  judgment. 
They  shall  hold  affirmative  on  the  trial,  which  shall  be  con- 
ducted and  evidence  shall  be  admitted,  and  bills  of  exception 
may  be  taken,  as  provided  in  civil  actions.31 

Sec.  531.     The  court  may  allow  any  amendment. 

The  court  may  amend  any  defect  or  informality  in  any  of 
the  proceedings  authorized  or  required  by  this  chapter,  or  cause 
Dew  parties  to  be  added,  and  direct  such  further  notice  to  be 
given  to  any  party  in  interest  as  it   deems  proper.3- 

29Gen'l     (o.lc.     §11046     (R.     S.  so ( fen'1     Code,     §11047     ( R.     S. 

§  (1420).    hi  re  George,  5  C.  C.  207;  §  (5421). 

Kramer    v.    Toledo,    53    O.    S.    436.  :» Gen'l     Code,     §11048      (R.     S. 

The   decision    of    the   court    in   favor  §6422). 

of  the  corporation  will  not  bar  the  32  Gen'l     Code,     §11049      ( R.     S. 

ri^'lit  of  tlio  State  to  test  its  power  §6423). 
I>v   quo   warranto.     State  v.   Salem, 
etc..   5   C.   C   58. 


631       TITLE  TRANSFERRED   BY   CONDEMNATION    PROCEEDINGS.       §  532 

Sec.  532.  Time  of  trial,  adjournments,  and  discharge  of  juries. 
The  court  may  direct  the  order  and  fix  the  time  of  the 
several  trials;  may  adjourn  or  continue  any  trial  for  the  pur- 
pose of  obtaining  proper  service  upon  any  property  owner,  or 
when  deemed  necessary  for  the  proper  and  convenient  trial 
of  the  several  cases;  and  may  discharge  any  jury,  and  cause 
other  juries  to  be  impaneled,  as  provided  in  this  chapter.3'' 

Sec.  533.     How  panel  to  be  filled — Jurors  to  be  interrogated 
by  court. 
When,  by  reason  of  non-attendance,  sickness  or  other  cause, 
any  of  the  sixteen  persons  are  not  present  and  in  condition  to 
serve  as  jurors,   the  judge   must   order  the   sheriff  to  fill   the   . 
vacancies  with  talesmen;  and  when  the  list  of  sixteen  is  full, 
the  judge  must  call  upon  each  separately,  beginning  with  the 
first  named  on  the  list,  to  take  his  place  in  the  jury  box,  and 
must  personally  inquire  of  each,   as  called,  whether  he  is  in- 
terested in  any  way  in  any  of  the  property,  rights,  or  interests 
sought  to  be  appropriated,  or  in  the  corporation  which  filed 
the  petition,   either  as  owner,  stockholder,  agent,  attorney  or 
otherwise;  and  if  such  person  answer  in  the  affirmative,  or  if 
it  be  shown  to  the  judge,  by  satisfactory  evidence,  that  he  is 
so  interested,  he  must  be  excused  from  serving  on  the  jury,  and 
the  next  person  on  the  list  must  be  called    and  interrogated  in 
like  manner;  and  if  the  list  of  sixteen  be  exhausted  before  a 
proper  jury  of  twelve  men  is  taken  and  accepted  therefrom, 
the  judge  is  required  to  order  the  sheriff  to  fill  the  remaining 
vacancies  in  the  jury  box  required  to  make  up  the  number  of 
twelve,   with   talesmen,  who  must  be   interrogated   as  herein 
above  provided.34 

Sec.  534.     Challenges  to  jurors,  and  how  vacancies  in  jury  box 
filled. 

When  the  jury  box  is  filled  with  twelve  disinterested  jurors, 
the  owners  of  the  property  which  is  the  subject   of  the  trial, 
jointly,  and  the  petitioner,  each  have  the  right  to  two  peremp- 
tory challenges,  and  to  challenge  for  cause;  and  all  vacancies  '  x 
arising  in  the  jury  from  challenge    or  otherwise,  must  be  filled 

ssGen'l     Code,     §11050      (R.     S.  34  G«n'l     Code,     §11051      (R.     S. 

§6424).  §  6425). 


§§  535-537  MERWINE    ON    REAL    ACTIONS.  632 

by   talesmen   having  the   qualifications  prescribed   in  the   last 
section,  to  be  ascertained  as  therein  provided.35 

Sec.  535.     The  oath  to  be  administered  to  jury. 

When  the  jury  is  filled,  the  probate  judge  must  administer 
to  them  the  following  oath:  "You,  and  each  of  you,  do  sol- 
emnly swear  that  you  will  justly  and  impartially  assess,  ac- 
cording to  your  best  judgment,  the  amount  of  compensation 
due  to  the  proper  owners  in  the  cases  which  will  be  brought 
before  you  in  this  proceeding,  by  reason  of  the  appropriation 
of  their  property  described  in  the  petition,  to  the  use  of  (here 
name  the  corporation),  in  the  proceeding  now  pending,  irre- 
spective of  any  benefit  from  any  improvement  proposed  by 
such  corporation;  and  you  do  further  swear  that  you  will,  in 
assessing  any  damages  that  may  occur  to  such  property  owners 
by  reason  of  the  appropriation,  other  than  the  compensation, 
further  ascertain  how  much  less  valuable  the  remaining  portion 
of  said  property  will  be  in  consequence  of  such  appropriation. 
This  you  swear  as  you  shall  answer  to  God."36 

Sec.  536.    The  form  of  writ  to  sheriff. 

The  probate  judge  may,  upon  motion  of  either  party,  issue 
the  following  writ  to  the  sheriff,  to-wit : 

'To  the  sheriff  of  County:  You  are  hereby  com- 
manded to  conduct  the  twelve  jurors  named  in  the  panel  to 
this  writ  annexed,  to  view  the  property  or  premises  sought  to 
be  appropriated  by  (here  state  the  name  of  the  corporation), 
and  owned  by  (here  state  the  name  of  the  owner  or  owners),  on 

.  the day  of  ,  then  and  there  to 

view  the  premises  or  property  aforesaid   (in  the  presence  of 
A.  B.  on  the  part  of  the  corporation  aforesaid),  and  C.  D.  on 

the  part  of  the  owner,  appointed  by  this  court,  on  the 

day  of ,  A.  D. ."    The  writ  shall  be  signed  by 

the  probate  judge,  and  certified  under  his  seal  of  office.37 

Sec.  537.     Judge  must  deliver  certain  copies  to  sheriff. 

The  judge  must  also  deliver  to  the  sheriff  a  copy  of  that 
part  of  the  petition  containing  a  separate  description  of  each 

85Gen'J     Code,     §11052      (R.     S.  37  Gen'l     Code,     §11054     (R.     S. 

5  6426).  §G428). 

8«  Gen'l     Code,     §11053      (R.     S. 
§6427). 


633       TITLE  TRANSFERRED   BY   CONDEMNATION   PROCEEDINGS.       §  538 

parcel  of  property,  and  rights  or  interests  sought  to  be  appro- 
priated within  the  county,  which  the  jury  is  required  to  view; 
he  may  appoint,  to  be  present  at  the  view,  the  two  persons 
named  in  the  writ ;  and  the  sheriff  who  is  to  execute  the  writ  is 
required  by  a  special  return  upon  the  same,  to  certify  under  his 
hand  that  the  view  had  been  made  according  to  the  command 
thereof.  The  expenses  of  taking  the  view  must  be  raxed  in 
the  bill  of  costs,  and  no  evidence  can  be  given  on  either  side 
at  the  taking  thereof.38 

Sec.  538.     Witnesses  may  be  examined  before  jury. 

Witnesses  may  be  examined  before  tbe  jury  after  its  return 
to  the  court ;  but  if  more  than  three  witnesses  be  examined  by 
either  party  on  the  same  point  in  the  same  case,  the  judge  may 
tax  the  costs  of  such  additional  witnesses  to  the  party  calling 
them.39 

Sec.  539.     When  a  structure  is  partly  on  land  sought  to  be 
appropriated. 

When  a  building  or  other  structure  is  situated  partly  upon 
land  sought  to  be  appropriated,  and  partly  upon  adjoining 
land,  and  such  structure  can  not  be  divided  upon  the  line  be- 
tween such  two  tracts  of  lands  without  manifest  injury,  the 
jury,  in  assessing  the  compensation  to  any  owner  of  the  lands, 
is  required  to  assess  the  value  of  the  same  exclusive  of  the  struc- 
ture, and  make  a  separate  estimate  of  the  value  of  the  structure  ; 
the  owner  of  the  structure  may  elect  to  retain  the  ownership  of 
the  same,  and  to  remove  it,  or  accept  the  value  thereof  as  esti- 
mated by  the  jury;  if  he  fail  to  make  such  election  within  ten 
days  from  the  date  of  the  report  of  the  jury,  or  within  ten  days 
from  the  termination  of  the  cause  in  any  higher  court  to 
which  it  may  be  taken,  he  will  be  deemed  to  have  elected  to 
retain  and  remove  the  structure,  but  if  he  elect  to  accept  the 
value  of  the  structure,  the  title  thereto  will  vest  in  the  corpora- 
tion making  the  appropriation,  which  shall  have  the  right  to 

ssGen'l     Code,     §11055      (R.     S.  Longworth.      Witness   can    not   give 

§6429).  opinion    as    to    amount   of    damages. 

s»Gen'l     Code,     §11056      (R.     S.  Railroad     v.     Ball,     5     0.     S.     568. 

§6430).      Owner    may    prove    that  Owner  a   competent  witness   on   his 

prior    to    the    proceeding    land    was  own  behalf.     Railroad  v.  Campbell, 

laid  out  in  town  lots.     Railroad  v.  4  O.  S.  583. 


§§  540-542  MERWINE    ON    REAL    ACTIONS.  634 

enter  upon  the  land  for  the  purpose  of  removing  the  structure 
therefrom.40 

Sec.  540.     Verdict,  and  confirmation  thereof. 

The  jury  is  required  to  render  its  verdict  in  writing,  signed 
by  the  foreman,  to  the  judge,  who  must  cause  it  to  be  entered 
of  record ;  and  unless  for  good  cause  shown,  upon  motion  to  be 
filed  within  ten  days  after  the  verdict  is  rendered,  a  new  trial 
granted,  the  judge  must  enter  a  judgment  confirming  such 
verdict.41 

Sec.  541.     When  and  how  corporation  may  have  possession. 

Upon  payment  to  the  party  entitled  thereto,  or  deposit  with 
the  probate  judge  of  the  amount  of  the  verdict  and  such 
costs  as  have  lawfully  accrued  in  the  case  up  to  the  time  against 
the  corporation,  the  corporation  will  be  entitled  to  take  pos- 
session of,  and  hold  the  property,  rights,  or  interest  so  appro- 
priated, for  the  uses  and  purposes  for  which  the  appropriation 
was  sought,  as  set  forth  in  the  petition,  and  the  judge  must 
enter  of  record  an  order  to  that  effect,  and  if  necessary,  proper 
process  shall  be  issued  to  place  the  corporation  in  possession 
thereof.4  - 

Sec.  542.     When  and  how  corporation  may  abandon  proceeding. 

The  corporation  may  abandon  any  case  or  proceeding  after 
paying  into  court  the  amount  of  the  defendant's  costs,  ex- 
penses and  attorney  fees,  as  found  by  the  court.  If  the  cor- 
poration fail  in  any  case  to  make  payment  or  deposit,  as 
provided  in  the  preceding  section,  within  thirty  days  after  con- 
firmation of  the  verdict,  the  probate  judge,  on  motion  of  the 
party  entitled  to  such  payment,  to  be  filed  within  ten  days  after 
the  expiration  of  said  thirty  days,  must  enter  an  order  direct- 
ing the  corporation  to  make  such  payment  or  deposit  within 
thirty  days  after  the  date  of  such  order;  and  unless  such  cor- 
poration, within  said   thirty  days,  make  such  payment   or  de- 

40Gen'l     Code,     111057      (R.  S.  « Oen'l     Code,     §11050      (R.     S. 

§0431).     Railroad  v.  Longworth,  30  §043.3).     A   judgment   must   be  cn- 

O.   S.    IDS;    Ward    v.    ilriilgc   Co.,  0  tered   confirming  the  verdict  before 

O.  S.   15;    Railroad  v.  Ball,  5  O.  S.  the  corporation  can  take  possession. 

568.  Wagner  v.  Railway,  38  O.  S.  32. 

»'  Gen'l     Cod«,     §  11058      ( R.  S. 
§0432). 


635       TITLE  TRANSFERRED   BY   CONDEMNATION    PROCEEDINGS.       §  543 

posit,  it  shall  be  held  and  considered  to  have  thereby  aban- 
doned the  property,  rights,  or  interest  so  appropriated,  and 
all  claims  thereon  under  its  proceeding,  and  the  judge  must 
issue  an  order  to  that  effect;  the  judge  must  also  enter  a 
judgment  against  the  corporation,  and  in  favor  of  the  party 
entitled  to  such  payment,  for  such  amount  of  expenses,  includ- 
ing time  spent  and  attorney  fees  incurred  by  him  in  the  pro- 
ceeding, as  the  court,  upon  the  evidence  offered  in  that  behalf, 
deems  just  and  reasonable,  for  which  execution  may  be  issued 
against  the  corporation ;  and  the  directors  of  the  corporation, 
individually,  will  be  liable  upon  such  judgment,  and  may  be 
made  parties  thereto  by  action.43 

Sec.  543.     When  action  may  be  brought  for  costs  and  expenses. 

If  such  judgment  be  not  satisfied  within  thirty  days  after 
the  rendition  thereof,  or  if  the  party  entitled  thereto  be  not 
satisfied  with  the  amount  thereof,  such  party  shall  have  a 
right  (of  action)  against  the  petitioner  for  his  expenses  afore- 
said, including  time  spent  and  attorney  fees,  and  also  for  his 
expenses,  including  reasonable  attorney  fees,  incurred  in  pros- 
ecuting such  action ;  but  the  action  must  be  brought  within  six 
months  after  the  rendition  of  the  judgment  in  the  probate 
court.44 

Sec.  544.     New  trial — Proceedings  thereon. 

A  new  trial  shall  be  granted  for  cause  only,  shall  take  place 
in  the  same  court  where  the  first  trial  was  had,  and  shall  be 
conducted  in  accordance  with  the  provisions  of  this  chapter 
for  the  first  trial,  so  far  as  they  are  applicable;  and  upon  the 
granting  of  the  motion  for  a  new  trial,  if  the  amount  of  the 
first  verdict  had  been  paid  into  the  court,  the  probate  judge 
shall  retain  the  same  until  the  final  termination  of  the  second 
trial;  but  if  upon  the  new  trial  the  verdict  of  the  jury  exceed 
the  amount  of  the  first  verdict,  the  corporation  shall  pay  the 
amount  of  the  first  verdict,  together  with  the  excess,  to  the 
owner  of  the  property;  and  if  the  verdict  upon  the  second 
trial  be  less  than  that  of  the  first,  the  probate  judge  shall  repay 
to  the  corporation  the  difference.  If  a  new  trial  be  granted 
at  the  instance  of  the  owner  of  the  property,  and  the  verdict 

«  On'l     Code,     §11061     (R.    S.  "Gen'l     Code,     §11061      (R.     R. 

§6435).  §6435). 


§§  545-547  MERWINE    ON    REAL    ACTIONS.  636 

of  the  jury  be  the  same  or  less  in  amount  than  that  first  ren- 
dered, the  owner  shall  pay  the  whole  costs  of  the  second  trial; 
and  if  it  be  more  than  that  first  rendered,  the  costs  of  the 
second  trial  shall  be  paid  by  the  corporation.45 

Sec   545.     Either  party  may  file  a  petition  in  error. 

Either  party  may  file  a  petition  in  error  in  the  court  of 
common  pleas  of  the  proper  county,  within  thirty  days  from 
the  rendition  of  the  final  judgment  in  the  probate  court,  and 
the  proceedings  in  error  must  be  conducted  as  in  civil  actions; 
but  the  corporation  may,  on  the  rendition  of  the  final  judgment 
in  the  probate  court,  pay  into  said  court  the  amount  of  the 
judgment  for  compensation  and  costs  therein  rendered,  and 
proceed  to  enter  upon  and  appropriate  the  property,  notwith- 
standing the  pendency  of  the  proceedings  in  error.46 

Sec.  546.     Proceedings  in  the  common  pleas  on  error. 

If  the  court  of  common  pleas,  upon  the  hearing  of  the  cause, 
affirm  the  judgment  of  the  probate  court,  all  the  costs  in  the 
court  of  common  pleas  must  be  paid  by  the  plaintiff  in  error ; 
and  if  it  reverse  such  judgment,  it  must  retain  the  cause  for 
trial  and  final  judgment,  as  in  other  cases,  which  trial  shall  be 
had  at  the  term  of  reversal  of  the  judgment,  unless  for  good 
cause  shown  by  either  party  the  court  grant  a  continuance; 
and  on  the  trial  of  the  cause  in  the  court  of  common  pleas,  the 
same  inquiry  shall  be  made  as  to  the  interest  of  the  jurors,  and 
the  same  oath  shall  be  administered  to  the  jury,  as  is  provided 
for  in  Gen'l  Code,  §§11050,  11053  (R.  S.  §§6425  and  6427).47 

Sec.  547     How  school  la'nd  may  be  appropriated. 

When  a  railroad  company,  incorporated  in  this  State,  has 
located  its  railroad  through  any  part  of  reserved  sections 
twenty-nine  or  sixteen,  for  school  purposes,  and  such  lands 
remain  unsold,  or  through  any  town  lot  or  parcel  of  ground 


■i--C,on]     Code,     §11(162      (R.     S.  ^  Gen'l     Code,     §11003,    et    seq. 

§6436).  (R.  S.  §6437). 

*e  Gen'l     Code,     §11063     (R.     S. 
§6437). 


637       TITLE  TRANSFERRED   BY    CONDEMNATION    PROCEEDINGS.       §  548 

used  for  or  devoted  to  school  purposes,  it  ma}'  appropriate  so 
much  of  such  land  or  lots  as  may  be  necessary  for  the  purposes 
aforesaid;  and  service  of  the  summon  made  on  such  trustees 
or  school  officers  as  have  possession  or  control  of  the  lands,  will 
have  the  some  force  and  effect  as  service  in  any  other  case  on 
owners  of  land  sought  to  be  appropriated.  The  money  arising 
from  such  appropriation  must  be  disposed  of  by  such  trustees 
or  school  officers  in  accordance  with  law.48 

Sec.  548.  When  proceedings  to  appropriate  private  property- 
may  be  commenced  in  court  of  common  pleas. 
When  the  probate  judge  is  interested,  either  as  a  stockholder, 
director  or  otherwise,  in  a  corporation  seeking  to  appropriate 
private  property  to  its  use.  or  if  before  filing  the  petition,  it 
is  made  to  appear  to  the  satisfaction  of  a  judge  of  the  court  of 
common  pleas  of  the  county  wherein  the  action  is  sought  to  be 
brought,  that  such  probate  judge  is  interested  either  as  owner 
or  otherwise  in  the  property  sought  to  be  appropriated,  or  by 
reason  of  sickness,  absence  or  other  incapacity  is  and  will  be 
unable  to  preside  at  the  trial,  the  proceedings  authorized  by 
this  chapter  may  be  commenced  in  the  court  of  common  pleas 
of  the  county;  and  in  that  case  the  proceedings  must  conform 
in  all  respects,  so  far  as  applicable,  to  the  provisions  of  this 
chapter,  and  all  the  powers  conferred  and  duties  imposed  there- 
by upon  the  probate  court,  and  will  devolve  upon  the  court  of 
common  pleas ;  and  said  court  may  make  such  orders  and  direct 
such  proceedings  to  be  had  as  may  be  necessary  to  do  full 
justice  between  the  parties  according  to  the  true  spirit  and 
intent  of  this  chapter;  and  after  final  judgment  the  corporation 
may,  on  depositing  the  amount  of  the  judgment  and  costs 
assessed  in  said  court  with  the  clerk  thereof,  be  entitled  to 
enter  into  possession  of  the  property  sought  to  be  appro- 
priated.49 

Sec.  549.     Court  to  appoint  attorney  for  party  absent  or  under 
disability. 

"When  a   party  in  interest  is  unknown,   or  his  residence   is 
unknown,  and  when  service  has  been  made  by  publication,  and 

^On"l     Code,     §11007     (R.     S.  <»  Gen'l     Code,     §11008     (R.     S. 

§0439).  §6440). 


§§550,551  MERWINE    ON    REAL    ACTIONS.  638 

the  party  has  not  appeared  in  the  proceedings  by  agent  or 
attorney,  or  when  such  party  in  interest  is  under  any  legal 
disability,  and  has  no  legal  guardian  or  trustee  within  the 
county  where  the  action  is  brought,  the  court  must  appoint 
some  competent  attorney  to  attend  upon  the  proceedings,  and 
protect  the  rights  and  interests  of  such  party:  and  the  court 
must  fix  the  amount  of  the  fees  of  the  attorney  for  such  service, 
which  shall  be  payable  out  of  any  money  paid  on  the  judgment 
rendered  in  such  case  for  property  appropriated."0 

Sec.  550.     Conflicting  claims  not  to  be  passed  upon. 

When  there  are  diverse  or  conflicting  claims,  legal  or  equit- 
able, to  the  real  estate,  or  any  interest  therein,  sought  to  be 
'appropriated  under  the  provisions  of  this  chapter,  the  jury  or 
court  must  not  pass  upon  the  same  in  the  proceedings  for 
appropriation,  but  such  claims  shall  be  reserved  for  adjudica- 
tion as  hereinafter  provided.51 

Sec.  551.     But  to  be  adjudicated  in  the  common  pleas. 

Upon  the  payment  of  the  money  into  the  court  by  the  cor- 
poration, a  party  claiming  a  legal  or  equitable  interest  in  the 
property,  or  the  money  arising  therefrom  by  such  appropria- 
tion, may  file  his  petition  in  the  court  of  common  pleas  of  the 
proper  county,  making  the  other  claimants  to  the  property  or 
money,   parties  thereto,  setting  forth  the   facts  on  which  the 
claim  is  founded,  the  fact  of  the  appropriation  of  the  property, 
the  amount  of  money  so  paid  in  therefor,  and  such  other  facts 
as  are  proper  to  enable  the  court  to  hear  and  determine  the 
matter  between  the  claimants;  and  the  court  must  forthwith  ap- 
point some  master  of  the  court,  or  other  suitable  person  selected 
by  the  parties,  to  hold  and  safely  keep  such  fund,  or  invest  the 
same  in  the  manner  the  court  shall  direct,  after  hearing  the  par- 
ties; and  such  fund  shall  thencefortli  represent  the  land,  and  the 
interests  therein,   and   be  subject   to  the   control    of  the   court 
having  jurisdiction  of  the  case,  by  orders  entered  in  the  action, 
according  to  the  rights  of  the  parties  to  the  land  or  fund,  as 
Prom  lime  to  time  the  court  may  determine/'2 

fipn'l     Code,     §11071      (R.     S.  •■-  Gen'l     Code,     §11073      (R.     S. 

8(U41).  §  0443). 

5i   Gen'l     Code     §  11072      (R.     S. 
§  1)442). 


639 


TITLE  TRANSFERRED  BY   CONDEMNATION   PROCEEDINGS.       §  552 


Sec.  552.     Such  proceeding  a  civil  action. 

Such  proceeding  in  the  court  of  common  pleas  will  be  con- 
sidered and  held  to  be  a  civil  action ;  and  the  conflicting  claims 
of  parties  to  the  fund  aforesaid  will  be  determined  by  the  court, 
or  by  a  jury  trial,  according  as  the  claim  is  equitable  or  legal, 
in  the  same  manner  as  if  the  land  had  not  been  converted  into 


money.53 

Sec.   553.     Unfinished  roadbed  of  railroad  company  may  be 
condemned. 

Any  railroad  corporation   of  this  State  may  condemn  and 
appropriate  to  its  own  use  the  interest  and  easement  in  and 
quiet  title  to    any  unfinished  roadbed    or  part  thereof    lying 
within  the  State,  and  on  the  line  of  its  proposed  road,  owned 
or  claimed  by  any  other  railroad  company  or  companies,  per- 
son or  persons,  partnership  or  corporation,  when  such  roadbed 
or  part  thereof  has  remained,  or  hereafter  remains    in  an  un- 
finished condition,  and  without  having  the  ties  and  iron  placed, 
and   continued  thereon  for  the   period  of  five  years  or  more 
immediately   preceding  the   commencement   of  proceedings   to 
condemn  or  appropriate  the  same  as  herein  authorized,  and 
every  such  company   or  companies,  person  or  persons,  partner- 
ship or  corporation,  is  required  to  be  made  a  party  defendant 
to  such  proceedings  to  condemn  or  appropriate  the  same,  and 
will  be  required  to  answer  therein,  setting  forth  fully  its  or 
their  title  to  or  interest  in  such  roadbed   or  part  thereof  sought 
to  be  appropriated  or  condemned,  if  any   it  or  they  may  claim, 
to   which   answer  the   plaintiff  must  plead  issuably,   unless   it 
admit  the  validity  of  the  defendant's  claim,  and  in  such  case,  if 
such  party  defendant  be  a  non-resident  of  this  State,  or  a  for- 
eign corporation,  service  of  summons  may  be  made  by  publi- 
cation,   under    subdivision    8    of    Gen'l    Code,    §  11296     (R.    S. 
§5048),  and  that  the  terms  company  or  companies,  as  used  in 
this  chapter,  shall  be  held  to  embrace  also  person  or  persons, 
partnership  or  corporation  as  used  in  this  section/'4 

Sec.  554.     Proceedings  in  such  case. 

When  it  is  determined  by  the  court,  upon  issue  of  law,  or  by 
the  jury  upon  issue  of  fact,  or  by  admission  of  the  pleadings,  or 

63  Gen']     Code,     §11075     (R.     S.  s^Gen'l     Code,     §1107(5      (R.     S. 

§(5444).  §6445). 


§  555  MERWINE   ON   REAL    ACTIONS.  640 

by  reason  of  failure  to  plead  that  any  such  company  asserting 
such  ownership  or  claim  is  not  entitled  thereto,  judgment,  in- 
cluding costs,  will  be  rendered  accordingly;  but  when  it  in 
like  manner  is  determined  that  any  such  company  has  an  in- 
terest in  such  roadbed,  or  part  thereof,  so  sought  to  be  appro- 
priated, the  jury  must  determine  and  state  the  amount  of 
compensation  due  to  such  company,  according  to  law,  on  ac- 
count of  the  appropriation  of  such  interest.55 

Sec.  555.     In  what  court  such  proceedings  may  be  commenced. 

Proceedings  under  this  act  may  be  commenced  in  the  probate 
court,  the  court  of  common  pleas  or  the  superior  court  of  any 
county  in  this  State  in  which  such  roadbed  or  part  thereof  so 
sought  to  be  appropriated  or  condemned  may  be  situated;  all 
or  part  only  of  such  roadbed  within  this  State  may  be  included 
in  one  proceeding,  and  when  such  proceeding  is  commenced  in 
the  court  of  common  pleas  or  superior  court,  the  same  proceed- 
ing shall  be  had  as  is  prescribed  in  this  chapter  for  the  conduct 
of  the  same  in  the  probate  court,  so  far  as  the  same  may  be 
applicable  to  such   common  pleas  or  superior  court,   and  not 
excepted  in  this  section,  and  the  case  shall,  on  motion,  be  taken 
out  of  its  order  by  the  court  or  by  any  reviewing  court,  and 
determined  without  any  unnecessary  delay;  and  proceedings 
in  error  to  such  common  pleas  or  superior  courts,  may  be  com- 
menced directly  in  the   supreme  court,  but  the  provisions  of 
this  chapter  as  to  viewers  shall  not  apply  to   appropriations 
authorized  by  such  sections,  and  when  any  railroad  corporation 
shall  commence  proceedings  under  this  act,  the  president  of 
said   corporation   shall   make,   subscribe   and   file   in   the   court 
where  any  such  proceedings  is  had,  a  statement  under  oath. 
declaring  that  it  is  the  bona  fide  intention  of  said  corporation 
to  complete  and  operate  a  railroad  on  the  roadbed  so  sought  to 
be  appropriated ;  and  if  said  corporation  shall  for  a  period  of 
one  year  after  it  shall  have  acquired  right  to  occupy  the  road- 
bed, fail  to  expend  in  and  about  the  completion  of  a  railroad 
thereon   a.  sum   equal   to   twenty-five  per  centum   of  the   total 
cost  of  completing  the  same,  to  be  estimated  by  the  commis- 
sioner of  railroads  and  telegraphs,  then  and  in  such  case  the 
s;iid  roadbed  shall  be  open  to  appropriation  and  condemnation 

">Gen'l     Code,     SHOTS      (R.     S.  §6446). 


641       TITLE  TRANSFERRED   BY   CONDEMNATION    PROCEEDINGS.       §  556 

under  this  act  by  any  other  railroad  corporation.  The  words 
roadbed  used  in  this  act  shall  be  held  to  include  right  of  way, 
depot  grounds  and  other  easements  connected  therewith,  and 
it  shall  be  sufficient  in  the  petition  and  proceedings  under  this 
act  to  designate  the  roadbed  as  the  roadbed  of  the  railroad 
corporation  by  which  the  route  of  the  road  was  located  and 
established,  with  the  terminal  points  within  which  appropria- 
tion is  sought.56 

Sec.  556.     Proceedings  when  land  is  held  without  agreement  by 
a  corporation. 

When  a  corporation    authorized  by  law  to  make  appropria- 
tion of  private  property  or  the  land  named  in  Gen'l  Code, 
§  11067    (R.    S.    §  6439)     of   this    chapter,    has   taken    posses- 
sion of,  and  is  occupying  or  using  the  land  of  any  person,  or  the 
land  mentioned  in  Gen'l  Code,  §  11067  (R.  S.  §  6439),  for  any 
purpose,  and  the  land  so  occupied  or  used  has  not  been  appro- 
priated and  paid  for  by  the  corporation,  or  is  not  held  by  any 
agreement  in  writing  with  the  owner  thereof,  or  the  trustees  or 
school  officers  having  possession  or  control  of  the  lands  named 
in  said   Gen'l   Code,    §11067    (R.    S.    §6439),   such   owner   or 
owners,  or  either  of  them,  or  said  trustees  or  school  officers,  may 
serve  notice,  in  writing,  upon  the  corporation  in  the  manner  pro- 
vided for  the  service  of  summons  against  a  corporation,  to  pro- 
ceed under  this  chapter  to  appropriate  the  lands,  and  on  failure 
of  such  corporation  for  ten  days  so  to  proceed,  said  owner  or 
owners,  or  said  trustees  or  school  officers  may  file  a  petition  in 
the  probate  court  of  the  proper  county  setting  forth  the  fact  of 
such  use  or  occupation  by  the  corporation,  that  the  corporation 
has  no  right,  legal  or  equitable,  thereto,  and  in  cases  of  reserved 
Section   16   and  Section   29,  or  any  part  of   sections   granted 
by    Congress    in    lieu    of    Section    16,    for    school    purposes, 
named    in    Gen'l    Code,    §11067     (R,    S.    §6439),    no    right, 
legal    or    equitable,    derived    from    the    trustees    and    officers 
named  therein,   that   the   notice   provided   in   this   section   has 
been    duly    served,    that    the    time    of    limitation    under    the 
notice   has   elapsed,   and   such   other   facts,    including   a    perti- 
nent description  of  the  land  so  used  or  occupied,  as  may  be 
proper  to  a  full  understanding  of  the  facts.     Such  owner  or 

^Gen'1     Code.      §11079    (K.     S.  §6447). 


§§  557,  558  MERWINE   ON    REAL    ACTIONS.  642 

owners,  or  such  trustees  or  school  officers  intending  to  institute 
said  proceeding,  may  demand,  in  writing,  from  the  president  or 
chief  officer  of  such  corporation  a  specific  description  of  each 
parcel  of  land  so  used  or  occupied  without  appropriation  by  it, 
of  the  work,  if  any,  constructed  or  intended  to  be  constructed 
thereon,  and  the  use  to  which  the  same  is  to  be  applied,  and 
upon  failure  of  said  corporation  for  ten  days  to  furnish  the 
same,  as  fully  and  completely  as  would  be  required  of  it  in 
proceeding  under  Gen'l  Code.  §  11067  (R.  S.  §  6439).  the  fact  of 
such  demand  and  failure  may  be  alleged  in  the  petition  in 
such  proceeding,  and  on  notice  to  the  corporation  and  proof 
thereof  being  made  to  the  probate  judge  having  jurisdiction 
of  such  appropriation,  he  shall  restrain  said  corporation  from  the 
use  and  occupation  of  said  land  until  such  demand  has  been  com- 
plied with,  or  such  owner  or  owners,  or  said  trustees  or  school 
officers  may  cause  the  necessary  surveys  to  be  made  therefor, 
and  the  costs'  thereof  shall  be  taxed  to  said  corporation  in  said 
proceeding.57 

Sec.  557.    Summons  in  such  case — Judgment  and  execution. 

A  summons  must  issue  and  be  served  upon  the  corporation, 
and  thereafter  the  proceedings  in  said  court  must  be  conducted 
to  final  judgment  in  all  respects  as  provided  in  this  chapter; 
and  if  the  corporation  fail  to  pay  the  judgment  and  costs 
awarded  against  it  in  the  proceeding,  the  same  may  be  col- 
lected by  execution  as  in  other  cases;  but  this  section  can  not 
be  construed  to  impair  or  lessen  in  any  manner  the  right  the 
owner  or  owners  or  the  trustees  or  school  officers  named  in 
§  6489  Gen'l  Code,  §  11067  (R.  S.  §  6439),  of  this  chapter  may 
have  to  proceed  against  the  corporation  as  in  all  other  cases 
of  the  unlawful  entry  upon  lands.58 

Sec.  558.     When  injunction  may  issue  against  corporation. 

If  execution  issued  as  provided  in  the  last  section  be  returned 
unsatisfied,  in  whole  or  in  part,  with  the  indorsement  that  no 
•roods  or  chattels,  lands  or  tenements  can  be  found  whereon 
to  levy,  or  if  the  judgment  remain  unsatisfied  for  more  than 
sixty  days  from  the  rendition  thereof,  the  court  may,  by  injunc- 

"  Ccn'l     Code,     §11084      (R.     S.  •■«  Gen'l     Code,     §11080      (R.     S. 

§  (.448 ) .  §  G449  ) . 


643       TITLE  TRANSFERRED   BY    CONDEMNATION    PROCEEDINGS.       §  559 

tion,  restrain  the  corporation  from  using  or  occupying  the  lands 
until  the  judgment  and  costs  are  fully  paid.69 

Sec.  559.     Fees  of  witnesses,  officers,  and  probate  judge,  and 
how  costs  are  adjudged. 

The  jurors  summoned,  and  attending  or  serving,  in  accord- 
ance with  the  provisions  of  this  chapter,  shall  each  receive  the 
same  fees  per  day  as  are  provided  by  law  for  jurors  in  the 
court  of  common  pleas,  and  also  five  cents  per  mile  for  each 
mile  of  the  distance  they  are  compelled  to  travel  in  the  dis- 
charge of  their  duties ;  the  witnesses  shall  be  allowed  the  same 
fees  and  mileage  as  are  allowed  for  attendance  at  the  court  of 
common  pleas;  the  sheriff  shall  be  entitled  to  such  fees  as  he 
is  allowed  by  law  for  similar  services  in  other  cases,  but  he 
shall  not  be  allowed  anything  in  the  way  of  poundage,  except 
on  money  made  on  execution  ;  the  clerk  shall  be  entitled  to  a 
fee  of  one  dollar  and  fifty  cents  for  drawing  and  certifying 
to  the  probate  judge  the  list  of  jurors ;  the  probate  judge  shall 
be  allowred  to  enter  a  charge  of  five  dollars  in  the  cost  bill  for 
each  day  occupied  in  the  trial  cause,  in  addition  to  his  other 
fees  provided  by  law;  and  the  whole  costs  so  taxed  shall  be 
adjudged  against  and  paid  by  the  corporation,  except  as  pro- 
vided in  the  next  section.60 

Sec.  560.     When  costs  may  be  apportioned. 

A  corporation  by  its  proper  officer,  agent  or  attorney,  may. 
at  the  time  of  filing  the  petition  with  the  probate  judge, 
deposit  with  such  judge  such  sum  of  money  for  each  separate 
parcel  of  property  as  it  deems  a  just  and  equitable  compensa- 
tion for  the  property,  rights  and  interest  described  in  the 
petition,  and  sought  to  be  appropriated;  and  when  the  final 
verdict  of  the  jury  as  to  any  parcel  of  property  does  not 
exceed  the  amount  so  deposited,  and  the  owner  has  refused, 
after  notice  of  such  deposit,  to  accept  the  same,  the  whole 
costs  of  the  proceeding  as  to  such  parcel  shall  be  equally 
divided  between  the  corporation  and  the  owner  or  owners 
of  the  property;  and  when  the  final  verdict  as  to  any  parcel 
or  parcels  exceeds,  and  as  to  other  parcel  or  parcels  does  not 
exceed    the  amount  deposited,  the  probate  judge  shall  appor- 

"Oon'l     Code.     HIOSS      ( R.     S.  ™  Gen'l     Code,     §11089      ( R.     S. 

§6450).  §6451). 


§  561  MERW1NE    ON    REAL    ACTIONS.  644 

tion  the  costs  in  such  manner  as  he  may  deem  equitable  and 

just.01 

Sec.  561.     When  this  chapter  does  not  apply. 

The  provisions  of  this  chapter  shall  not  apply  to  proceedings 
by  State,  county,  township,  district  or  municipal  authorities, 
to  appropriate  private  property  for  public  uses,  or  for  roads 
or  ditches ;  and  in  all  such  cases  it  shall  be  optional  with  such 
authorities  to  pay  the  judgment  rendered  against  them  accord- 
ing to  Gen'l  Code,  §  11058,  (R.  S.  §  6432),  or  to  pay  the  costs 
and  decline  to  take  the  property  sought  to  be  appropriated.02 

ei  Gen'l     Code,     §11090     (R.     S.  62  Gen'l     Code,     §11091      (R.     S. 

§6452).  §6453). 


FORMS. 


PROCEDURE  BY  WHICH  A  MUNICIPAL  CORPORATION 
CONDEMNS  REAL  ESTATE  FOR  PUBLIC  PURPOSES. 


Forms. 

388.     Application     to     assess     com- 
pensate m. 

The  precipe  to  the  clerk. 

The  order  of  the  court  as  to 
the  manner  of  notice  in  the 
above   case. 

The  notice  to  be  served  by 
the  sheriff  in  compliance 
with  previous  order. 

The  sheriff's  return  of  his 
proceedings  under  this 
writ. 

Answer  of   defendant. 

Eeply  of  plaintiff. 

Motion  by  county  commis- 
sioners to  be  made  parties 
defendant. 

Waiver  of  notice  and  entry 
of  appearance  of  county 
commissioners. 

Order  of  court  making  county 
commissioners     defendants. 


389. 
390. 


391. 


392. 


393. 
394. 
395. 


396. 


397. 


Forms. 

398.     Offer    of    plaintiff    to    confess 

judgment. 
Decree  and  order  of  the  court 

impaneling  jury. 
Order  to  clerk  and  sheriff  to 

draw   jury. 
Form  for  list  of  names  drawn 

for    jurors   in    the    probate 

court. 
The  venire. 
The     sheriff's 

proceedings 

writ. 
Writ  of  view. 
The    sheriff's 

proceedings 

writ. 
The  verdict  of  the  jury. 
Order    of    the    court    confirm 

ing   verdict. 


399. 


400. 


401. 


4(12. 
403. 


404 
405 


406. 
407. 


return    of    his 
under       said 


return    of     his 
under       said 


No.  388.     Application  to  assess  compensation. 

Probate    Court,    County.    Ohio. 


City  of 


— ,  Ohio, 
Plaintiff, 


vs. 


No. 


W.  J.  R.,  E.  M.  R.,  his  wife,  and  M.  E., 
as  trustee  of  the  estate  of  L.  E., 
deceased, 

Defendants. 

Petition. 

Now   comes   plaintiff.   The   City  of  ,   Ohio,   and   represents 

to  the  court   that  it   is,   and  at   the  various  times  mentioned   in   this 
application   was    a  city  under  the  laws  of  Ohio,  and   duly  organized 
645 


MERWINE    ON    REAL    ACTIONS.  646 

as  such;  that  its  city  council,  by  resolution  duly  adopted  on  the 
day  of  ,  19 ,  declared  the  necessity  of  appropri- 
ating, its  intention  to  appropriate,  and  that  it  was  reasonably  neces- 
sary   to   appropriate    the    following   described    property    to    public    use 

with    the    purpose    of    constructing    a    for    the    said    city    of 

,    Ohio,    and    the    inhabitants    thereof,    to-wit:     (Here    describe 

real  estate). 

On  the  passage  of  said  resolution,  members  of  said  county 

voted    in    the    affirmative    and    no    votes    were    cast    in    the    negative. 

Said    resolution    was    duly    published    in   ,    and    

on    the    and    days    of    ,    19 ,    each    of    said 

newspapers    being    newspapers    of    general    circulation    in    the    city   of 

,  _ County,  Ohio,  the  said  being  published  in  the 

German  language.     Notice  of  the  passage  of  said  resolution  was  duly 

served  upon  the  defendant  W.  J.  R.,  on  the  day  of  ,  19 , 

by  ,  the  said  having  been  appointed  for  that  purpose 

by  the  mayor  of  ,  Ohio,  on  the  day  of  ,  19 . 

The  said  duly   made   return   of  his   said  service  on  said  W. 

J.   R.,   on   the   day   of  ,    19 •     A   true   copy   of  said 

resolution  is  hereto  attached  and  made  a  part  hereof  and  marked 
"Exhibit  A." 

The    said    city    council    duly    passed    an    ordinance,    No.    ,    on 

the  day  of  ,   19 ,   determining   to   proceed   with  the 

appropriation  of,  and  to  appropriate  the'  above  described  property 
to    public    use    for    said    sewage    disposal    plant    purposes.      On    the 

passage    of    said    ordinance,   members    of   said    council    voted 

in  the  affirmative  and  no  votes  were  cast  in  the  negative,  more  than 
two-thirds    of    said    council    concurring   therein.      Said    ordinance    was 

duly  published  in  the  said  ,  said  ,  and  said  , 

on  the  and days  of  ,   19 .     A  true  copy   or 

said  ordinance  is  hereto  attached  and  made  a  part  hereof  and  marked 
"Exhibit  B." 

The  proceedings  of  the  council  of  the  city  of  ,  Ohio,  above 

referred  to,  have  been  taken  to  secure  the  above  described  property 
for  public  use  for  sewage  disposal  plant  purposes. 

The  City  of  ,  Ohio,  represents  that  it  was,  and  is  reason- 
ably necessary  to  acquire  the  above  described  property  for  the  pur- 
poses hereinbefore  stated,  and  now  asks  the  court  to  impanel  a  jury 
to  make  inquiry  into,  and  assess  the  compensation  that  shall  be  paid 
to  the  owners  thereof  for  said  property. 

The  said  parties  made  defendant  herein  own,  or  claim  to  own,  or 
have  some  title  or  interest  in  the  above  described  property.  Said 
W.  J.  R.  is  the  owner  of  the  above  described  property  and  E.  M.  R. 
has  a  dower  interest  in  said  property. 

Wherefore,  Plaintiff  asks  the  court  to  cause  a  jury  to  be  im- 
paneled to  make  inquiry  into  and  assess  the  compensation  to  be 
paid  by  the  plaintiff  tor  said  property  appropriated  and  hereinbe- 
fore   described,   and    that   upon    payment   to   the   owner  or  owners,    or 


647  FORMS. 

the    deposit    of    the    amount    so    assessed    as    the    court    shall    order, 
possession  of  said  property  may  be  awarded  it  according  to  law. 


J.    N.    B., 
City    Solicitor. 
The  State  of  Ohio,  County,  ss.: 

.7.  N.  B.,  being  first  duly  sworn,  says  that  he  is  the  city   solicitor 

for    the    city    of    ,    duly    authorized    in    the    premises,    and    an 

attorney    of    record    in    the    above   entitled    cause,    and    that    the    facts 
stated  and  allegations  contained  in  the  foregoing  application  are  true 

as  he  verily  believes.  , 

J.   N.   B. 

Sworn  to  before  me  by  the  said   J.  N.   B.,  and  by  him  subscribed 
in  my  presence  this  day  of ,  19 . 


Notary  Public,  County,   Ohio. 

No.  389.     The  precipe  to  the  clerk. 

issue    notice    to    the    defendants    named    in    the    above    application 

that  the  plaintiff  will,  on  the day  of  ,  19 ,  at  

o'clock    m.,    apply    to    the    Hon.    ,    Judge    of    the    Probate 

Court  of  County,  Ohio,  for  the  impaneling  of  a  jury  to  make 

inquiry   into  and  assess  the  compensation   to  be  paid  by   the  City   of 

,  Ohio,  the  plaintiff  in  the  above  entitled  case,  to  the  owner, 

or   owners,   for  the   following  property,   to-wit:       (Here   describe   it). 

No.  390.     The  order  of  the  court  as  to  the  manner  of  notice  in 
the  above  case. 

(Same  caption  as   in   the  petition.) 

This  day  came  the  plaintiff,  by  its  attorneys,  and  filed  its  appli- 
cation to  assess  the  compensation  for  the  appropriation  of  certain 
property  therein  described,  naming  the  defendants  as  persons  owning 
or  having  an  interest  in  such  property,  and  filed  therewith  its 
precipe  for  a  notice  to  the  defendants  W.  J.  R.,  E.  M.  R.,  his  wife,  and 
M.  E.  trustee  of  the  estate  of  L.  E.,  deceased. 

Wherefore,   It  is  ordered  that  a  notice  be   issued,  directed  to   the 

Sheriff  of County,  Ohio,  to  notify  said  W.  J.  R.,  E.  M.  R.,  his 

wife,  and  M.  E.,  trustee  of  the  estate  of  M.  E.,  deceased,  that  on  the 

■    day    of   ,    19 ,    at o'clock   m.,    application 

will  be  made  for  an  order  to  impanel  a  jury  to  assess  the  compen- 
sation to  be  paid  by  the  city  of ,  Ohio,  to  the  owner   or  owners 

of  the  property  which  said  application  described.  Said  notice  is  to 
contain   an  accurate  description   of   the  entire  piece  of  real   estate  to 

be  appropriated.      Said   application    is  set    for   hearing  on    the   

day   of   ,    19 ,   at   o'clock m.,    for   the    purpose   of 

impaneling  a  jury,  and  said  notice  must  be  served  at  least  five  days 
before    the    time    of    said    hearing,    and    that    said    defendant    must 


MERWINE    ON    REAL    ACTIONS.  648 

appear  before  said  Probate  Court  at  the  court  house  in  said  county 
on  the  day  and  hour  above  mentioned,  when  said  application  will  be 

for  hearing.  , 

Probate   Judge. 

No.  391.     The  notice  to  be  served  by  the  sheriff  in  compliance 
with  a  previous  order. 

(Same  caption  as  in  the  petition.) 

To  the  Sheriff  of  County,  Ohio: 

You  are  hereby  commanded  to  notify  W.  J.  T.,  E.  M.  R.,  his  wife, 
and  M.  E.,  trustee  of  the  estate  of  L.  E.,  deceased,  that  an  application 
in  writing,  substantially  as  herein  set  forth,  will  be  made  in  the  city 

of ,  Ohio,  to  this  court  on  the day  of ,  19 , 

at  o'clock  —   m.,   to   impanel   a   jury   to   make   inquiry    into   and 

assess   the    compensation    to    be    paid    by    the    City    of   ,    Ohio, 

the  plaintiff  in  the  above  entitled  case,  to  W.  J.  R.,  E.  M.  R.,  his 
wife,  and  M.  E.,  trustee  of  the  estate  of  L.  E.,  deceased,  the  owners 
of  the  following  described  real  estate,  to-wit:      (Here  describe  it.) 

Said  property  having  been  condemned  and  appropriated  to  public 

use     for     the     purpose     of     constructing     a     for     the     said 

City  of  ,  Ohio,  and  the   inhabitants  thereof,  by  an  ordinance 

passed  by  the  council  of  said   city  on  the  day  of  , 

19 ,  and  plaintiff  asks  that  upon  the  payment  to  the  owner    or 

owners,  or  the  deposit  of  the  amount  so  assessed,  as  the  court  shall 
order,  possession  of  said  property  may  be  awarded  to  it  according 
to   law,   and    that   said    defendants   appear   before   said    Probate   Court 

at  the  court  house   in   said   city  and   county   on  the  day   of 

,    19 ,   at   o'clock   m.,    and    that    said   application 

will  be  for  hearing,  said  notice  to  be  served  at  least  days  before 

the  time  of  said  hearing,  and  on  or  before  which  date  you  will  make 
due    return   of   this   writ. 

Witness   my   hand  and   seal    of   said   court   this day    of 

,   19 .  . 

Probate  Judge. 

No.  392.     The  sheriff's  return  of  his  proceedings  under  this 
writ. 

In  the  Sheriff's  Office. 

State  of  Ohio,  County,   ss.: 

Received  this  writ  on  the  ■  day  of  ,  19 ,  at  

o'clock  M.,   and   pursuant   to   its   command   on   the   day 

of  ,  19 ,   I  served  the  same  by  personally  handing  a  true 

and  duly  certified  copy  of  this  writ,  with  all  the  indorsements  thereon, 
to    the   within    named    defendant,    M.    E.,    trustee    of    the    estate   of   L. 

E.,  deceased;    also  on  the  day  of  ,   19 .   I   served 

the   same    by    personally    handing   a   true    and    duly    certified   copy    of 


649  FORMS. 

this    writ,    with    all    the    indorsements    thereon,    to  the    within    named 

defendant,  E.  M.  R.,  wife  of  W.  J.  R.,  and  on  the  same  day  I  served 

the    same    by    leaving    a    true    and    duly    certified  copy    of    this    writ 

with    all    the    indorsements    thereon    at   the    usual  place    of    residence 
of  the  within  named  defendant,  W.  J.  R. 


Sheriff  of County,  Ohio. 

No.  393.     Answer  of  defendant  W.  J.  R. 

(Same  caption  as  in  the  petition.) 

For  his  defense  to  the  "application  to  assess  the  compensation" 
filed  herein,  defendant,  W.  J.  R.,  denies  "that  it  was  and  is  reasonably 
necessary  to  acquire  the  property  of  this  defendant  therein  described 

for  the  uses  therein  stated;"  he  denies  the  right  of  said  City  of , 

Ohio,  to  ask  this  court  to  impanel  a  jury  to  make  inquiry  into  and 
assess  the  compensation  that  shall  be  paid  the  owners  thereof  for 
said  property  on  the  representations  therein  set  forth;  he  denies 
the  right  of  this  court  to  grant  the  prayer  of  said  application  and 
to    cause   a   jury    to    be    impaneled    to   make    inquiry    into   and    assess 

the  compensation   to  be   paid  by  the  City  of  ,  Ohio,   plaintiff, 

for  said  property  so  attempted  to  be  appropriated,  or  to  order  pos- 
session thereof  awarded  upon  the  payment  of  any  sum  whatsoever  by 
reason  and  on  account  of  the  matters  and  things  in  said  application 
set  out. 

Further    answering     said     application     this     defendant     says     that 

several  years  ago  the  plaintiff,  the  City  of  ,  Ohio,  purchased 

the   title    to   acres    of   land    immediately    south    of    the    lands    of 

this    defendant   to    be    used    solely    for   purposes,    but   which 

use  has  not  been  abandoned  by  the  city;    that  they  exchanged  about 

acres    off    the    west    end    thereof    for    about   acres    of    land 

immediately   east  of  the  lands  of   this   defendant,  and   that  said  City 

of  — ,  now  owns  in  fee  simple  about acres,  more  or  less, 

adjoining  the  lands  of  this  defendant  on  the  east  and  south  thereof 

upon    which    it    intends    to    maintain    and    operate    a at    or 

near  the  dividing  line  and  nothing  more. 

This  defendant  further  says  that  since  the  City  of  •,  Ohio, 

abandoned  its  purpose  to  use  said  acres  for  purposes, 

it  has  purchased  what  are  known  as  the  farms,  located  more 

than  miles  south  of  the  lands  of  this  defendant,  and  it  is  upon 

this  last  mentioned  property,  and  no  other,  that  the  City  of  , 

Ohio,    intends     to     establish     a ;      that     in     the     passage 

of  the  resolution  and  ordinance  referred  to  in  said  application,  de- 
claring the  intention  to  appropriate  the  property  for  sewage  dis- 
posal plant,  this  defendant  was.  advised  that  it  was  only  the  inten- 
tion of  said  City  of ,  Ohio,  to  construct  and  maintain  a 

in  and  over  the  lands  of  this  defendant,  con- 
necting   its    present    system    with    said    on    said 

lands    of    the    city    so    heretofore    acquired    by    the    city,     and     ad- 


MERWINE   ON    REAL    ACTIONS.  650 

joining  the  premises  of  the  defendant;  that  at  the  time  before  the 
passage  of  said  resolution  and  ordinance,  it  was  not,  and  is  not  now 

the  intention  of  said  City  of  ,  Ohio,  to  establish  on  the  lands 

of   this   defendant  sought   to  be  appropriated   herein,   a   ,   nor 

appropriate    any    of   the    lands    of    this    defendant    for    such    purposes. 

On    the    contrary,    this    defendant    says    that    it    was     and    is    the 

intention   of  said  city  to  appropriate  said  acres  of  land   for  the 

purpose  of  constructing  thereon  a  ,  which  is  to  be  an  exten- 
sion of  its  present  ,  upon  the  lands  of  the  plaintiff  so  pur- 
chased  by   said   city   and   adjoining  the  lands   of   defendant   aforesaid, 

and  that  it  has  no  intention  of  maintaining  a upon  any  part 

of  said  acres  of  land. 

Wherefore,  this  defendant  says  that  there  is  not  now,  and  never 
has   been    any    resolution    or    ordinance    such    as    is    required    by    law 

passed    by    the    city    council    of   ,    Ohio,    upon    which    to    base 

authority  for  this  action,  and  that  this  action  is  wholly  unwarranted 
and  unauthorized  by  law. 

(This  answer  is  verified  as  in  other  cases.) 

No.  394.     Reply  of  plaintiff. 

Now    comes   the    plaintiff   of    the    City    of   ,    Ohio,   and   for 

reply    to    the    answer    of    the    defendant,    W.    J.    R.,    admits    that    the 

City   of  ,    several    years   ago   purchased    a   title   to   acres 

of  land  lying  immediately  south  of  the  land   of  said   defendant;    that 

the  city  exchanged  about  acres  off  of  the  west  end  thereof  for 

about    acres    of    land    lying    immediately    east    of    the    lands    of 

said    defendants,    and    that    the    City    of   has    purchased    the 

farms  known  as  the  farms,   located   about  miles   south 

of  the  land  of  said  defendant,  on  which,  in  part,  it  intends  to  estab- 
lish a  . 

This  plaintiff,  further  replying,  denies  each  and  every  fact  stated 
and  allegation  contained  in  said  answer,  not  herein  expressly  admitted 
to  be,  true. 

This    reply    is    verified    as    in    other   cases. 

No.  395.     Motion  by  county  commissioners  to  be  made  parties 

defendant. 

(Same  caption  as  in  the  petition." 

Now    come    ,    —    and    ,    commissioners    of 

County,  Ohio,  by  their  attorneys,  and  represent  to  the  court 

that  across  the  property  sought  to  be  condemned  in  the  above  en- 
titled case,  there  is  a  county  duly  and  regularly  established, 

and  that  the  County  of  ,  State  of  Ohio,  has  interests  in- 
volved in  said  suit  which  ought  to  be  protected,  and  therefore  move 
the  court  that  they,  as  such  commissioners,  be  made  parties  de- 
fendant herein.  , 

Attorneys    for   the    Commissioners    of 
County,    Ohio. 


651  FORMS. 

No.  396.     Waiver  of  notice  and  entry  of  appearance  of  county 
commissioners. 

Now  come  ,  and  ,  the  duly  elected,  quali- 
fied and  acting  commissioners  of County,  Ohio,  and  on  behalf 

of    said County,    hereby    waive    the    service    and    return    of 

notice  of  the  adoption  of  the  resolution  of  the  city  council  of 
,  Ohio,  adopted  on  the  day  of  ,  19 ,  de- 
claring the  intention  of  said  city  to  appropriate  the  property  in- 
volved    in    this    suit     for    a    ,     and     further    on     behalf     of 

said  county,  waived  the  issuance,  the  service  and  return  of  sum- 
mons, or  other  process  herein  and  all  irregularities  of  any  kind  and 
character  in  the  proceedings  of  said  council  and  this  court,  and 
voluntarily   enter   their  appearance  as  such   commissioners   herein. 


No.  397.     Order  of  the  court  making   county  commissioners 
defendants. 

(Same  caption  as  in  the  petition.) 

This    day    this    cause   came    on    to    be    heard    upon    motion    of    the 

county   commissioners   of   County,   Ohio,    that    they,    as    such 

commissioners,  be  made  parties  defendant  herein,  and  On  considera- 
tion whereof,  and  it  appearing  to  the  court  that  said  County, 

Ohio,  has  interests  in  said  cause  which  ought  to  be  protected,  t  is 
ordered  and  decreed  that  said  commissioners  be,  and  they  ne^by 
are    made   parties   defendant  herein. 

No.  398.     Offer  of  plaintiff  to  confess  judgment. 

(Same  caption  as  in  the  petition.) 

Xow    comes    the   plaintiff,    the    City    of   ,    Ohio,    and   offers 

to  confess  judgment  in  favor  of  the  defendant,  W.  J.  R.,  in  the  amount 

of    $ ,    and    all    the    costs    accrued    to    date.      This   offer    is   made 

in  pursuance  of  Section  19  of  the  New  Ohio  Municipal  Code  passed 
October  22,  1902,  at  Section  5142,  Bates  Revised  Statutes  of  Ohio 
(Gen'l  Code,  Sec.  ). 

No.  399.     Decree  and  order  of  the  court  impaneling  jury. 

(Same  caption  as  in  the  petition.) 

This    day   this    cause    came    on    to    be   heard    upon    the    application 

of  the  plaintiff,  the  City  of  ,  Ohio,  to  impanel  a  jury  to  assess 

the  compensation  to  be  paid  the  owners  of  real  estate  described  in 
said  application.  The  answer  of  the  defendant,  W.  J.  R.,  the  reply 
of  plaintiff,  the  evidence  offered,  was  argued  by  counsel  and  sub- 
mitted   to   the   court,    and    upon    due   consideration   whereof   the   court 


MERWINE    ON    REAL    ACTIONS.  652 

finds  that  each  and  all  of  the  defendants  have  been  duly  served  with 
notice  of  the  pendency  of  the  application  in  the  ordinary  manner  by 
serving  legal  process  at  least  five  days  prior  to  this  application,  or 
have  voluntarily  entered  their  appearance  herein,  and  that  all  of 
the    proceedings    are    regular    and    valid: 

It    is    therefore    ordered,    adjudged    and    decreed    that    a    jury    be 

impaneled  on  the  day  of  ,  19 ,  at  o'clock 

m.,   for   the   purpose   of  assessing   the   compensation   to   be   paid 

for  said  property. 

No.  400.     Order  to  clerk  and  sheriff  to  draw  jury. 

(Same  caption  as  in  the  petition.) 

To  the  Clerk  of  the  Court  of  Common  Pleas,  and  the  Sheriff  of  said 
County: 

You  are  hereby  notified  and  directed  to  meet  at  the  clerk's  office 
and  proceed  at  once  in  said  office  and  draw  from  a  jury  box  accord- 
ing to  law,  the  names  of  twelve  jurors  to  serve  in  the  above  entitled 
case  in  the  Probate  Court  of  said  county,  and  the  clerk  aforesaid 
will  make  a  list  of  the  names  drawn  in  the  order  in  which  they  are 
drawn,  and  certify  the  same  to  be,  with  the  return  of  this  writ. 

Witness  my  hand  and  the  seal  of  said  Probate  Court  at  , 

Ohio,  this  day  of  ,  19 . 


Probate  Judge. 

No.  401.     Form  for  list  of  names  drawn  for  jurors  in  the  pro- 
bate court. 

Office  of  the  Clerk,  Court  of  Common  Pleas,  County,  Ohio. 

To  the  Probate  Judge  of  said  County,  Greeting: 

Pursuant  to  the  order  and  notice  dated  the day  of , 

19 ,   I,  with  the  sheriff  of  said  county,  met  at  this  office,  and  we 

proceeded  at  once  therein,  on   this  day  of  ,   19 , 

to  draw  from  the  jury  box  the  names  of  petit  jurors.  I  certify  that 
the  following  is  a  list  of  the  names  so  drawn  in  the  order  in  which 
they  were  drawn: 


Witness  my  signature  and  the  seal  of  said  Court  of  Common  Pleas 
of  ,  Ohio,  this  day  of  ,  19 . 

Clerk. 


653 


FORMS. 


No.  402.     The  venire. 

State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

We  command  you  that   without  delay,  you  summon 

Names.  Addresses. 


to  be  and  appear  before  the  Probate  Court  within  and  for  said  County 

of   ,    at    the    court    house    in    ,    in    said    county    on    the 

day  of  ,  19 ,  at  o'clock  m.,  and  so  from 

day  to  to  day  until  discharged,  then  and  there  to  serve  as  jurors  in 

the  case  of  the  City  of  ,  Ohio,  vs.  W.  J.  R.,  et  al,  and  how 

you   shall  execute  this  writ  you  will  make   it   appear   to   the  Probate 
Court  on  the  day  above  named,  and  have  you  then  and  there  this  writ. 
Witness  my  signature  as  judge  and  ex  officio  judge  of  said  court 
this  day  of  ,  19 . 


Judge  and  Ex  Officio  of  the  Probate  Court. 

No.  403.     The  sheriff's  return  of  his  proceedings  under  said 
writ. 

State  of  Ohio,  County,  ss.: 

Sheriff's  Office. 


-    19- 


On  the 


day  of 


19- 


-,  I  received  this  venire  and 


served  the  same  on  the  several  persons  therein  named  at   the  times, 
manner  and   place   opposite  their  names    indorsed   thereon. 

Names.  Where  served.  How  served. 


MERWINE   ON    REAL   ACTIONS. 


654 


Names. 


Where   served. 


How  served. 


Sheriff. 


No.  404.    Writ  of  view. 

(Same  caption  as  in  the  petition.) 

To  the  Sheriff  of  County: 

You  are   commanded   to   conduct  the  twelve  jurors   named   in   the 
panel  to  this  writ  annexed,  to  view  the  premises  or  property  sought 

to  be  appropriated  by   the  City  of  ,  Ohio,  and  owned  by  W. 

J.   R.,   and   described   as   follows,   to-wit:       (Here  describe   it),   on   the 

day  of ,  19 ,  then  and  there  to  view  the  premises 

or   property   aforesaid,    in   the    presence   of   ,    on    the    part   of 

-,   on   the   part   of   the   owners, 


the  corporation   aforesaid,   and 

appointed    in   this   court,   and    you   shall   make    return   of   the   manner 

in  which  you   have  executed  this  writ  to  this  court  on  the  

day  0f  ,   19 (  and  have  you  then   and  there  this  writ. 


Witness   my    hand    and    seal    of   said    court    this 

19 . 

Probate  Judge  of 


day    of 


County,  Ohio. 


No.  405.     The  sheriff's  return  of  his  proceedings  under  said 
writ. 

T  hereby  certify  that  the  view  of  the  premises  or  property  required 
by  the  within  writ  has  been  duly  made  by  said  jurors,  according  to 
the  command  thereof,  on  this  day  of  ,  19 . 


Sheriff  of 
Panel  ok   Jurors. 


County,  0. 


No.  405.     The  verdict  of  the  jury. 

(Same  caption  as  in  the  petition.) 

We.    the    jury    impaneled    and    sworn    in    this    case,    do   assess    the 
compensation    and   damages   to   be   paid   by   the   plaintiff  by   reason  of 


655 


FORMS. 


the  appropriation  of  the  property  described  in  the  petition,  to  the 
uses  and  purposes  of  said  plaintiff  so  set  forth  in  said  petition  as 
follows: 

To  ,  owner  of  said   real  estate,   as  compensation  for   land 

taken,  $ .     And  as  damages  to  the  residue  of  said  tract,  $ . 

We  make  said  assessments  without  deduction  for  benefits  to 
any  property  of  the  owners  for  any  improvement  proposed  by  said 
plaintiff. 


No.  407.     Order  of  court  confirming  verdict. 

(Same  caption  as  in  the  petition.) 

The  jury  herein  having  returned  a  verdict  for  the  amount  of  com- 
pensation in  tnis  case  to  be  paid  to  W.  J.  R.,  as  owner  of  the  real  es- 
tate described  in  the  application  by  reason  of  the  appropriation  of  the 
same  to  the  use  of  the  plaintiff,  at  $ ,  it  is  now,  therefore,  ad- 
judged that  said  verdict  be  confirmed,  with  the  reservation  to  the 
defendant,  W.  J.  R.,  of  his  right  to  file  a  motion  for  a  new  trial 
within  the  time  allowed  by  law,  and  that  said  plaintiff,  upon  payment 
of  the  said  amount  of  said  verdict,  and  of  all  costs  due  from  them, 
shall  be  entitled  to  take  possession  of  and  hold  the  premises  afore- 
said, with  all  the  rights  and  interest  thereto  belonging  and  appending 
for  the  uses  and  purposes  for  which  the  appropriation  is  made,  and 
all  necessary  process  to  put  said  plaintiff  in  possession  of  the  same 
is  thereupon  awarded. 


MERWIXE   OX    REAL   ACTIOXS. 


656 


PROCEDURE  IN  TRANSFER  OF  TITLE  IN  CONDEMNA- 
TION PROCEEDINGS  BY  A  PRIVATE  CORPORA- 
TION  OF  THE  PROPERTY  OF  AN 
INDIVIDUAL. 


Forms. 

408.     Form  for  the  petition  for  the 

appropriation     of      private 

property. 
400.     The   precipe   in   such   ease. 

410.  Order    issuing    summons    for 

the  defendant  and  fixing 
the  time  and  place  for  hear- 
ing   preliminary    questions. 

411.  The    summons    and    the    sher- 

iff's return  of  his  proceed- 
ings  under   said   writ. 

412.  Motion  to  dismiss  action. 

413.  Order  of  the  court  overruling 

motion,  directing  that  a 
jury  be  drawn  and  fixing 
the  time  at  which  the  jury 
must    appear. 

414.  The  order  to  draw  jury. 


Forms. 

415.  The  sheriff's  return  of  his 
proceedings  under  said 
writ. 

The   venire. 

The  sheriff's  return. 

Entry  of  the  court  ordering 
the  jury  to  view  the  prem- 
ises sought  to  be  appropri- 
ated. 

Writ  of  view. 

Sheriff's  return  of  his  pro- 
ceedings under  this  writ. 

421.  The  verdict  of  the  jury. 

422.  Motion    to    set    aside    verdict 

and  for  a  new  trial. 
Entry   overruling   motion   and 
confirming    the    verdict    of 
the  jury. 


416. 
417. 
418. 


419 
420 


423. 


No.  408.     Form  for  the  petition  for  the  appropriation  of  private 
property. 


The 


Company, 


Plaintiff. 
vs. 
M.  V.,   S.  V.,  J.  W.  B. 
and  J.  S.  B., 

Defendants. 


No. 


Petition. 


Plaintiff   says   that    it   is   a   corporation    duly   organized    under    the 

laws  of  the  State  of  Ohio  under  the  corporate  name  of  The  

Company;    ihat   it   now   owns  and  operates  within   the   State  of  Ohio, 

a  railway  known  and  designated  as  The  Company;    that  on 

the  day  of ,  19 ,  at  a  meeting  of  the  stock- 
holders of  said  railway  company,  of  which  due  notice  had  been  given 
according    to    law,    the    holders    of    a    majority    of    the    stock    of    said 

company  determined  to  extend  the  line  of  said  railway  from  

northward   to  the  Town  of  ,   in  the  said  State  of  Ohio;    that 

the  president  and  directors  of  said  company  made  a  certificate  of 
said  fact  according  to  law,  naming  the  place  of  the  new  terminus 
of  said  railway,  and  the  counties  through  and  into  which  said  rail- 
way would  pass,  and  filed  the  same  in  the  office  of  the  Secretary  of 
State;    that    by    reason    of    said    action    so    taken    said    railway    was 


657  FORMS. 

extended  northward   through  the  County  of  ,   in  and  through 

the   County    of   ,    and    and    in    the    County 

of  to  a   point  in   the  line  of  the  railway   where   it 

makes  a  junction  with  The  Company  at  or  near  the  Town 

of  in  said  County  of  in  the  State  of  Ohio,  and  to 

make    the    said    Town    of in    said    County    of    ,    the 

terminus  of  said  portion  of  said  railway,  instead  of  the  City  of 
,  Ohio,  as  heretofore,  said  City  of  having  been  here- 
tofore the  terminus  of  said  portion  of  said  railway;  that  it  is  neces- 
sary, in  order  to  carry  out  the  business  and  purposes  of  this  incorpora- 
tion and  its  said  extension,  that  it  shall  appropriate  the  lands  herein- 
after described  for  the  purposes  of  a  right  of  way  and  the  laying  of  its 
railway  tracks  thereon,  and  to  conduct  its  business  as  a  common 
carrier  within  said   State. 

Said  real  estate  over  and  through  which  said  right  of  way  is 
sought  to  be  appropriated  is  hereinafter  described  in  four  several 
tracts  which  are  respectively  designated  Tract  A,  Tract  B,  Tract  C, 
and  Tract  D,  and  which  said  tracts  are  owned  by  the  persons  desig- 
nated as  the  owners  thereof  in  the  description  of  each  of  said  sev- 
eral tracts. 

Tract  A.  owned  by  M.  V.,  is  situated  in Township,  — 

County,  Ohio.    (Here  describe  it). 

The  portion  or  portions  of  said  lands  heretofore  last  described  so 
sought   to   be   appropriated   as   aforesaid    for   a    right   of   way   of   said 

railway  company  being  a  strip  of  land  feet  in  width,  being  

feet  on  each   side  of   the  center  line  of  said   railway  so   now   located 

through  said  land,  said  strip  being  feet  long  and  containing  

acres   of   land,   said   center   line   of   said    railway    entering   said   Tract 

A  at  of  said  survey,  and   running  through   said  Tract   A  in 

direction  to  stations  of  said  railway.     (Here  follows 

description  of  B.,  C.  and  D.  in  the  same  manner  and  giving  the  names 
of  the  owners  thereof.) 

For  a  more  full  description  of  the  lands  so  sought  to  be  ap- 
propriated for  right  of  way  in  the  tracts  of  land  heretofore  described, 
reference  is  here  made  to  plats  of  the  surveyed  line  of  said 
railway  through  said  tracts  of  land,  which  said  plats  are  hereto  at- 
tached marked  Exhibit  A.  Exhibit  B,  Exhibit  C  and  Exhibit  D,  and 
made  a  part  of  this  petition.  Plaintiff  further  says  that  it  is  unable 
to  agree  with  said  owners  as  to  the  compensation  to  be  paid  for 
said   property. 

Plaintiff  therefore  prays  that  such  steps  may  be  taken  as  are 
authorized  by  law  whereby  it  will  be  enabled  to  appropriate  said 
parcels  of  property  to  its  use  for  the  purposes  described,  upon  the 
payment  of  full  compensation  to  the  owner  thereof  as  the  same  may 
be  found  and  as  provided  by  law. 


Attorneys  for  Plaintiff. 


MERWINE    ON    REM,    ACTIONS.  658 

State  of  Ohio,  County,   ss.: 

,  being  duly  sworn,  says  that  he  is  the  chief  engineer  and 

duly    authorized    agent    of    the    plaintiff    herein,    and    he    believes    the 
statements  of  the  foregoing  petition  to  be  true. 


Subscribed   in  my  presence  and  sworn  to  before  me  this 
day  of  ,   19 . 


Notary  Public,  — County,  Ohio. 

No.  409.     Precipe  in  such  case. 

To  ,  Probate  Judge: 

Issue  summons  in  the  above  case  for  M.  V.,  S.  V.,  J.  W.  B.  and 
J.  S.  B.,  returnable  according  to  law.  Indorse,  "An  action  to  condemn 
the  following  described  real  estate  for  right  of  way  purposes  for 
railway."      (Here   describe   real   estate   sought   to   be   condemned.) 


Attorneys   for  Plaintiff. 


No.  410.     Order  issuing  summons  for  the  defendant  and  fixing 
the  time  and  place  for  hearing  preliminary  questions. 

(Same  caption  as  in  the  petition.) 

This  day  came  the  plaintiff  by  its  attorneys  and  filed  in  this  court 
its  petition  for  the  appropriation  of  private  property  described  in  the 
petition  and  owned  by  the  persons  therein  named,  and  filed  therewith 
a  precipe   for  summons    for   the  defendants,  whereupon   it   is   ordered 

that    a   summons    issue   to   the    sheriff    of  County,   Ohio,    for 

the  defendants,  which  is  done.     And  the  court  fixing  the  day 

of ,  19 ,  at  o'clock  m.,  as  the  date  for  the  hear- 
ing the  preliminary  questions  herein,  to  which  time  this  proceeding 
is  continued. 

No.  411.     The  summons,  and  the  sheriff's  return  of  same. 

Probate  Court. 

State  of   Ohio, County,   ss.: 

To  the  Sheriff  of  County: 

You  are  commanded  to  notify   M.  V.,  S.  V.,  J.  W.  B.  and  J.  S.  B., 

that    on    the   day    of   ,    19 ,    a    petition    was   filed 

in  the  Probate  Court  of  County,  Ohio,  by  The  Com- 
pany praying  for  the  appropriation  for  its  uses  of  certain  property 
interests  and  rights  therein  described  situated  in  said  county  in 
which  they  have  an  interest  as  owners  or  otherwise;  and  that  they 
;;ppear  before  said   Probate  Court  at   the  court  house   in   said   county, 

on  the -  day  of  -  — .  19 .  at  -     -  o'clock,  m.,  when 

said  petition  will  lie  for  hearing,. on  or  before  which  day  you  will 
make  due  return  of  this  writ. 


659  FORMS 

Witness   my  hand   and    the   seal   of   said   court   this  day 

of  19 . 

Probate  Judge  of County,  Ohio. 

The  Shebiff's  Retubn  of  His  Proceedings  Undeb  Said  Wbit. 

State  of  Ohio,  County,   ss.: 

Received    this    writ    on    the   day   of   ,    19 ,    at 

o'clock  m..  and   on   the  day  of  ,   19 ,   I 


served  the  same  by  personally  handing  a  true  copy  thereof,  with  all 
indorsements  thereon,  to  the  within  named  M.  V.,  S.  V.,  J.  W.  B. 
and  J.  S.  B.  , 

Sheriff. 

No.  412.     Motion  to  dismiss  action. 

(Same  caption  as  in  the  petition.) 

Now  come   the   defendants,   and  at  the  close  of  the  evidence   upon 
the    hearing    of    the    jurisdictional    question    herein    as    set    forth    in 

S  (i420    (Gen'l  Code,  Sec.  )    of  the  Revised  Statutes  and  move  the 

court  to  dismiss  the  petition  and  the  proceedings  thereunder,  because: 
(Here  set  forth  reasons  for  dismissing  the  petition.) 


Attorneys  for  Defendants. 


No.  413.  Order  of  the  court  overruling  motion,  directing  that 
a  jury  be  drawn  and  fixing  the  time  at  which  the  jury 
must   appear. 

(Same  caption  as  in  the  petition.) 

This  day  came  the  plaintiff  and  said  defendants,  each  and  all  of 
them,  and  thereupon  this  cause  came  on  to  be  heard  upon  the  ques- 
tions of  the  existence  of  the  corporation,  its  right  to  make  the  ap- 
propriation, its  inability  to  agree  with  the  owners  of  the  property, 
and  the  necessity  of  the  appropriation,  and  the  court,  having  heard 
the  evidence,  and  having  considered  the  motions  to  dismiss  the  pro- 
ceedings filed  herein,  on  the  day  of  ,  19 ,  having 

heard  the  arguments  of  counsel  and  being  fully  advised  in  the  prem- 
ises, does  overrule  said  motion,  and  do  find  that  the  plaintiff  is  a 
corporation,  and  had  a  legal  right  to  make  the  appropriation  prayed 
for  in  said  petition,  in  each  and  all  of  the  tracts  described  therein; 
that  the  plaintiff  is  unable  to  agree  with  the  owners  of  said  property 
as  to  the  amount  of  compensation  to  be  paid  to  them  therefor,  and  that 
there  is  a  necessity  for  such  appropriation  as  stated  in  the  petition, 
and  the  court  proceeding  as  directed  by  the  statute,  orders  and  directs 
that  a  jury  be  drawn  as  required  by  law,  and  that  said  jury  be  sum- 
moned  to  appear  before  this  court  on   the  day  of  , 

19 ,   until   which   time  this  cause  stands  adjourned. 

To  all  of  which  findings,  rulings,  orders  and  judgments,  and  each 
thereof,  and  all  of  the  matters  herein  found  and  recited,  and  the 
order   and   judgment   of   said    court    directing   the    drawing   and    sum- 


MERWINE   ON    REAL   ACTIONS. 


GGO 


moning  of  a  jury,  and  the  overruling  of  said  motion,  the  said  defend- 
ants, and  each  and  all  of  them  jointly  and  severally  at  the  time 
excepted,  and  herein  now  except. 

No.  414.     The  order  to  draw  jury. 

(Same  caption  as  in  the  petition.) 

To  the  Clerk  of  the  Court  of  Common  Pleas  and  the  Sheriff  of ; — ■ 

County: 
You    are    hereby    notified    and    directed    forthwith    on    the    receipt 
hereof,  to  draw  16  names  from  the  box  containing  the  names  of  persons 
selected   as  jurors   for   the  county,  to  serve  as  jurors   in   the   case  of 

The Company  vs.  M.  V.,  et  al,  in  the  Probate  Court  of  said 

County,  and  the  clerk  aforesaid  will  return  to  me  this  writ 


with  a  list  of  the  names  so  drawn  indorsed  thereon. 

Witness  my  hand  and   seal  of  said  Probate  Court,   this  

day  of  -,   19 •  "> 

Probate  Judge. 

No.  415.     The  sheriff's  return  of  his  proceedings  under  said 
order. 

The  State  of  Ohio,  County,  ss.: 

To  the  Probate  Judge  of  said  County,  Greeting: 

Pursuant  to  your  order  of  the day   of  

I    have,    with    the    sheriff    of    said    county,    on    this    

1    19 ,   drawn    according  to  law  the   following  names  from 

the    box    containing   the   names    of    persons    selected    as    jurors    from 
the  county,  to-wit: 

Names.  Addresses. 


19 , 

day    of 


Witnf.ss  my  signature  and  the  seal  of  the  Court  of  Common  Pleas, 
said   county,   this   day   of  ,   19 . 


Clerk. 


661 


FORMS. 


No.  416.     The  venire. 

The  State  of  Ohio, 


County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

We   command   you   that,   without   delay,   to   summon: 

Names.  Addresses. 


to  be  and  appear  before  the  Probate  Court  within  and  for  said  County 

of  ; at    the   court   house    in   in    said    county    on    the 

day  of  ,  19 ,  at  o'clock  in  the  forenoon  and 

so  from  day  to  day  until  discharged,  then  and  there  to  serve  as  jurors 

in  the  cause  of  The  Company,  vs.  M.  V.,  et  al,  and  how  yon 

shall  execute  this  writ,  make  it  appear  to  our  said  court  on  the  day 
above  named,  and  have  you  then  and  there  this  writ. 

Witness  my  signature  as  judge  and  ex  officio  judge  of  said  Probate 
Court  at  this  dav  0f  ,  19 . 


Judge  and  Ex  Officio  Judge  of  the  Probate  Court. 


No.  417.     The  sheriff's  return. 

State  of  Ohio,  : County,   ss.: 

Sheriff's   Office. 


On    the 


day   of 


19- 


< 


,    19 . 

I  received  this  venire 
and  served  the  same  on  the  several  persons  therein  named,  at  the 
times  and  in  the  manner  placed  opposite  their  names  indorsed  thereon. 

Names.  Where    served.  How   served. 


MEKWINE    ON    REAL    ACTIONS. 


662 


Names. 


Where  served. 


How  served. 


Sheriff  of 


County,  Ohio. 


No.  418.     Entry  of  the  court  ordering  the  jury  to  view  the 
premises  sought  to  be  appropriated. 

(Same  caption  as  in  the  petition.) 


This    day    came    the    plaintiff    and 


defendants,    and   also 


came  the  following  named  persons  who  were  duly  examined  and  im- 
paneled and  sworn  as  jurors  herein  according  to  law,  to-wit: 


and  thereupon,  on  motion  of  plaintiff,  an  order  was  issued  to  the 
sheriff  to  conduct  the  jury  to  view  the  premises  sought  to  be  appro- 
priated on  the  day   of  ,   19 ,   in   the   presence  of 

,  appointed  on  the  part  of  plaintiff,  and  ,  appointed  on 

the  part  of  the  defendants,  to  show  the  jury  said  premises,  returnable 
on  the  day  of  ,  19 . 


No.  419.     Writ  of  view. 

(Same  caption  as  in  the  petition.) 

To  the  Sheriff  of  County: 

You   are   hereby   commanded   to  conduct   the   twelve   jurors   named 
in  the  panel   to  this  writ  annexed,  to   view   the  property  or  premises 

sought  to  be  appropriated  by  The  Co.,  and  owned  by  

et  ah  defendants,  on   the  day  of  ,   19 ,  and    then 

and  there  to  view  the  premises  or  property  aforesaid  in  the  presence 

of   on   the   part   of   the   corporation    aforesaid,   and 

on    the    part   of  the  owners,    appointed    in    this    court;    and    vou   shall 
make  return  of  the  manner  you  have  executed  this  writ  to  this  court 

on    the    day    of ,    19 ,    and    have   you    then    and 

there   this   writ. 


663  FORMS. 

Witness  my   hand   and   the   seal   of   said  court  this  day 

of  ,  19 .  , 

Probate  Judge  of  - County,  O. 


No.  420.     Sheriff's  return  of  his  proceedings  under  this  writ. 

I  hereby  certify  that  the  view  of  the  premises,  or  property,  re- 
quired by  the  within  writ,  has  been  duly  made  by  the  said  jurors 
according  to  the  command  thereof. 


19 . 

Panel  of  Jubobs. 


No.  421.     The  verdict  of  the  jury. 

(Same  caption  as  in  the  petition.) 

We,  the  jury  impaneled  and  sworn  in  this  case,  do  assess  the 
compensation  and  damages  to  be  paid  by  the  plaintiff  by  reason  of 
the  appropriation  of  the  property  described  in  the  petition  to  the 
uses  and  purposes  of  said  plaintiff  so  set  forth  in  said  petition  as 
follows: 

To  ,   owner   of  Tract  C,   as   compensation    for  land   taken, 

$ ,  and  as  damages  to  residue  of  tract  $ . 

To  ,   owner   of   Tract   D   as   compensation    for   land   taken, 

$ ,  and  as  damages  to  residue  of  tract  $ . 

We  make  said  assessments  without  deduction  for  benefits  to  any 
property  of  the  owners  from  any  improvement  proposed  by  plaintiff. 


19 •  Foreman. 


No.  422.     Motion  to  set  aside  the  verdict  and  for  a  new  trial. 

(Same  caption  as  in  the  petition.) 

The  plaintiff  now  comes  and  moves  the  court  to  set  aside  the 
verdict  in  this  action  awarded  said  defendants  and  grant  a  new  trial 
in  said  action  for  the  following  reasons:     (Here  give  them). 


Attorneys  for  Plaintiff. 


MERWINE   ON    REAL   ACTIONS.  664 

No.  423.   Entry  overruling  motion  and  confirming  the  verdict 
of  the  jury. 

(Same  caption  as  in  the  petition.) 

The  jury  herein  having  assessed   the   amount  of  compensation   in 

this  case  to  be  paid  to  ,  owner  of  said  real  estate   described 

in    the    petition   as   Tract   C,   by    reason    of    the    appropriation    of   the 

same  to  the   use  of  the  plaintiff,  at  $ for  the  land   taken,   and 

$• —    —    for    the    damages    to    the    residue    of    said    land,    in    all    the 

sum  of  $ ,  and  the  motion  of  the  plaintiff  for  a  new  trial  having 

been  made,  the  same  is  hereby  overruled,  to  which  the  plaintiff 
excepted. 

It  is  therefore  ordered  and  adjudged  that  said  verdict  be,  and 
the  same   is  hereby  confirmed,  and  the  said   plaintiff,  on   payment  of 

the   amount   of   said   verdict,   to-wit:    $ and   all    costs    from   the 

plaintiff   due,    taxed   at    $ ,    shall   be   entitled    to    take   possession 

of  and  hold  the  premises  aforesaid  with  all  rights  and  privileges  there- 
unto belonging  and  appertaining  for  the  uses  and  purposes  for  which 
the  appropriation  was  made,  and  all  necessary  process  is  awarded  to 
put  said  plaintiff  into  possession  of  the  same. 


CHAPTER  XVII. 

TRANSFER  OF  TITLE  BY  VACATION  OF  A  STREET  OR 
ALLEY   OF  A  MUNICIPALITY. 


SECTION. 

:>&2.  Vacation  of  street  or  alley 
by  order  of  the  court. 

503.  Vacated  portion  of  street  or 
alley  reverts  to  adjoining 
owners. 


Sl.<  uox. 

564.  Petition   for   vacation  of   such 

street  or  alley,  and  the 
nut  ice  thereof  to  adjoining 
property   owners. 

565.  Street     or     alley     not     to     be 

closed  until  damages  are 
paid. 


Sec.  562.  Vacation  of  street  or  alley  by  order  of  the  court. 
On  petition  filed  in  the  court  of  common  pleas  by  any  person 
owning  a  lot  in  any  city  or  in  any  incorporated  or  unincorpor- 
ated hamlet  or  village,  for  the  establishment  or  vacation  of  a 
street  or  alley  in  the  immediate  vicinity  of  such  lot.  the  court, 
upon  hearing,  and  being  satisfied  .that  it  would  conduce  to 
the  general  interest  of  such  city,  or  the  hamlet  or  village,  may 
declare  such  street  or  alley  established  or  vacated:  but  the 
remedy  provided  in  this  section  will  be  in  addition  to  those 
prescribed  in  the  chapter  of  the  statutes  of  this  State  concern- 
ing streets,   public   grounds,  etc.1 


i  R.  S.  §§  1536-148.  1536-145-146- 
147  provide  for  the  vacation  of 
streets,  change  of  name.  etc.  by 
proceedings  by  the  council  of  any 
city  or  village  for  that  purpose. 
"Under  a  claim  of  abandonment  of 
a  road  in  a  municipal  corporation, 
proof  that  no  work  has  l>een  done 
on  the  road  by  the  public  authori- 
ties for  fifteen  years:  that  the  road 
was  at  times  in  bad  condition  and 
impassable:  that  it  passed  over  a 
steep  hill:  was  difficult  of  use;  that 
a  new  road  had  been  established  in 
the  vicinity  intended  to  take  its 
place:  that  eleven  years  before  suit 
665 


was  brought  travel  had  been  sub- 
stantially diverted  to  the  new  road. 
and  that  portions  <>f  the  old  road 
had  been  fenced  in,  are  not  suffi- 
cient to  show  abandonment  by  the 
public. 

"If  non-user  of  such  road  may 
work  an  abandonment  of  it.  the 
non-user  must  be  shown  to  have 
extended  over  a  period  of  twenty- 
one  years.'"  Xail  v.  Furnace,  eic 
46  0.  S.  544.  Streets  and  highways 
were  held  in  trust  by  the  officers  of 
a  municipality  for  the  public.  Rail- 
way v.  Elyria,   14  C.  C.  52. 


§§  563,  564  MERWINE    ON    REAL    ACTIONS.  666 

Sec.  563.  Vacated  portion  of  street  or  alley  reverts  to  adjoin- 
ing owners. 
When  a  street  or  alley  is  vacated  under  the  provisions  of  the 
statutes  authorizing  the  same  to  be  vacated  by  the  court  of  com- 
mon pleas,  and  under  the  statutes  authorizing  the  council  of  a 
municipality  to  vacate  the  same,  the  portion  of  such  street  or 
alley  vacated  reverts  to  the  abutting  lot  owners,  subject, 
however,  to  such  rights  as  other  property  owners  on  the  street 
or  alley  may  have  therein  as  a  necessary  means  of  access  to 
their  property.- 


Sec.  564.     Petition  for  vacation  of  such  street  or  alley,  and  the 
notice  thereof  to  adjoining  property  owners. 

Notice  of  the  pendency,  object  and,  prayer  of  a  petition  for 
the  vacation  or  establishment  of  a  street  or  alley  as  aforesaid 
is  required  to  be  given  by  publication  in  some  newspaper  of 
general  circulation  in  the  county  in  which  said  street  or  alley 
is  located,  for  four  consecutive  weeks  on  the  same  day  of  the 
week,  and  the  cause  may  be  heard  and  determined  at  any 
time  after  the  expiration  of  ten  days  from  the  last  publication; 
and  if  any  person  other  than  the  petitioner,  owning  a  lot 
in  the  immediate  vicinity  of  such  street  or  alley  prayed 
to  be  vacated  or  established,  claims  that  he  will  sustain  dam- 
age thereby,  the  court  may  proceed  to  hear  proof  in  reference 
thereto  and  may  render  judgment  against  the  petitioner  for 
such  damages  as  it  may  think  just,  and  the  same  must  be 
assessed  by  the  court  against  the  petitioner,  ratable  according 
to  the  value  of  the  property  owned  by  them  as  the  same  stands 
taxed  on  the  tax  list  of  the  county;  and  a  jury  may  be  de- 
manded as  in  other  cases;  and  when  necessary  it  is  made  the 
duty  of  the  court  to  appoint  a  guardian  ad  litem  for  all  minors 

2Kinnear   rt   al.  v.   Beatty,  05   0.  Jones     oil     Easements,     §§  54P>     and 

S.  264.     "Where  his  property  is  net  550;  Smith  v.  Boston,  7  Cush.  254; 

in     physical    contact    with     the    va-  Littler   v.   City,    106    111.   353:    Kim- 

cated   portion   of  the  street,  and   he  ball 'v.  Tloman,  74  Mich.  0!)!);  Bailey 

has   other    reasonable    means   of  ac-  v.  Culver,  84  Mo.  531;    Jackson   v. 

cess,  the  individual  has  no  right  of  Jackson,    16    O.    S.    163;    Elliot    on 

action  by   winch    he  can  enjoin  the  Bailroads,    §1086;     Buhl    v.    Depot 

obstruction     or     recover     damages.  Co..  !>s    Mich.  596;   Quincy,  etc.,  v. 

The    authorities     an-     numerous     in  Newcome,   7    Met.   276." 
support   of    this   proposition.      Ibid. 


667 


TRANSFER    OF    TITLE    BY    VACATION. 


§  565 


or   persons   of   unsound    mind    who    may   be   interested    '..)    the 
premises.8 

When  one  of  two  owners  adjoining  an  alley  obtains  the 
vacation  thereof  without  the  consent  of  the  other  owner,  the 
petitioning  owner  can  not  obstruct  the  alley.4  Under  a  recent 
enactment  municipalities  must  be   notified.4* 

Sec.  565.     Street  or  alley  not  to  be  closed  until  damages  are 
paid. 

Thv  street  or  alley  so  declared  vacated  under  the  provisions 
of  the  foregoing  sections  can  not  be  closed  or  obstructed  until 
the  damages  so  established  have  been  fully  paid  to  the  persons 
entitled    to    the    same.5 


3R.  S.  §1536-149.  See  No.  424 
for  form  of  the  petition,  the  notice 
and  order  of  sale  in  such  cases.  A 
municipality,  bv  its  council,  can  not 
vacate  a  part  of  a  city  road  within 
its  boundaries.  Railway  v.  Cum- 
mins, 53   0.  S.  083. 

4  2  N.  P.  N.  S.  293.  In  such 
case  the  city  has  the  right  to  inter- 
vene by  cross-petition  and  claim 
damages.     In  re  Alley,  25  W.  L.  B. 


89.  See  also  Cincinnati  v.  Commis- 
sioners, 1  Disn.  4.  See  also  under 
this  section  of  the  statutes,  In  re 
Railway  Co.,  19  C.  C.  308.  As  to 
title  of  adjoining  owners,  see  also 
Stevens  v.  Shannon  et  al„  G  C.  C. 
142;  affirmed  in  51  O.  S.  393;  Kerr 
v.   Commissioners,  51   O.   S.  593. 

•**99   O.  L.  93. 

s  R.  S.   §  1536-150. 


FORMS. 


PROCEDURE   IN  CASE   OF   VACATION  OF   STREET   OR 

ALLEY. 

Forms.  Forms. 

424.     The    petition    therefor.  426.     Proof    of    publication    of    the 

4^5.     The    publication    of   the   legal  above  notice. 

notice   in   such   cases.  427.     The   order   and   decree   of    the 

court  vacating  the  alley. 

No.  424.     The  petition  therefor. 

In  the  matter  of  the  application  of  E.  M.  N. 
and  J.  J.  H.  for  vacation  of  an  alley 

in  the  city  of ,  Ohio.  No.  . 

Y'o   the   Honorable,    the   Judges  of   the  Common    Pleas   Court  of  — : 

County,  Ohio. 

The  said  petitioners.  E  M  N  and  I  F  1  epresent  that  £.  M.  X. 
i-<    the    owner    of    the    following    described     real     estate     in    the    city    of 

,   Stat.-   of   Ohio,   and  county  of .  and  more  particularly 

bounded  and  described  as  follows:  (Here  insert  description  of  real 
estate  l ;  that  the  said  J.  J.  H.  is  the  owner  of  the  following  described 
real  estate  in  said  city,  county  and  State,  and  more  particularly  de- 
scribed as  follows:  (Here  describe  real  estate):  that  said  lots  of  said 
petitioners  in  said  subdivision,  are  all  and  the  only  lots  adjoining 
that  portion  of  the  alley  asked  to  be  vacated. 

Your  petitioners  respectfully  request  that  all  that  portion  of  the 
alley  lying  adjacent  to  said  lots  aforesaid,  to-wit:  (Here  describe  that 
portion  of  the  alley  desired  to  be  vacated),  be  vacated,  for  the  reasons 
that  the  same  is  no  longer  of  any  public  use  whatever,  either  to  the 
lot  owners  in  the  immediate  vicinity,  or  to  the  public,  or  to  the  city 

of  ,  Ohio,  and  that  it  will  not  be  detrimental  but  conduce  to 

the  general  interests  to  have  the  same  vacated.  Your  petitioners  pray 
for  the  vacation  of  said  alley  within  the  boundaries  above  described. 

(Said  petition  should  be  verified  as  other  civil  actions  are  verified.) 

No    425.     The  publication  of  the  legal  notice  in  such  cases. 

Notice  is  hereby  given  that  E.  M.  X.  and  J.  J.  H.  on  the 

day  of ,  19 ,  filed  a  petition  in  the  Court  of  Common  Pleas, 

668 


O'tiO  FORMS. 


County, 'Ohio,  being  cause  No.  ,  asking  that  all  that 


portion  of  the  alley  adjacent  to  the  lots , and 

in  ,  subdivision,  in  the  city  of  ,  Ohio,  to-wit:    (Here 

follows  description  of  the  alley  desired  to  be  vacated),  be  vacaied  for 
the  reasons  that  the  same  is  no  longer  of  any  public  use  whatever 
either  to  the  lot  owners  in  the  immediate  vicinity,  or  to  the  public,  or 

to  the  city  of ,  Ohio,  and  it  will  not  be  detrimental  but  conduce 

to  the  general  interest  to  have  the  same  vacated. 


Attorney  for  Petitioner. 


No.  426.     Proof  of  publication  of  the  above  notice. 

State  of  Ohio.  County,  ss.: 

,  Foreman  of  — ,  a  newspaper  published  and  printed 

in    ,   County,    Ohio,    personally    appeared    and    made 

oath  that  the  attached  printed  advertisement  was  published   for  four 

consecutive    weeks    in    said    newspaper,    i.    e.,    on    , , 

■- — ,  and  ■ — ,  19 and  that  said  newspaper  is  of  general 


circulation  in  said  county. 


Subscribed  and  sworn  to  this  day  of  ,  19- 


Kotary  Public  in  and  for  County,  Ohio. 

No.  427.     The  order  and  decree  of  the  court  vacating  the  alley. 

(Same  caption  as  in  the  petition.) 

This  cause  came  on  to  be  heard,  having  been  regularly  assigned  for 
trial,  upon  the  petition  of  E.  M.  N.  and  J.  J.  H.,  to  vacate  the  alley 
as  hereinafter  described,  and  the  evidence,  and  the  court  finding  that 
notice  of  the  pendency  of  the  petition  has  been  given  according  to  the 
statute  in  such  case  made  and  provided,  and  that  no  one  has  appeared 
to  contest  said  application  and  no  demurrer  or  answer  has  been  filed 
thereto,  and  that  said  alley  described  in  said  petition  is  no  longer  of 
any  public  use  whatever,  either  to  the  lot  owners  in  that  vicinity  or  to 
the  public,  or  to  the  city  of ,  Ohio,  it  is  therefore  ordered,  ad- 
judged and  decreed  that  all  that  portion  of  the  alley   in  the  City   of 

,  Ohio,  lying  adjacent  to  lots  ,  and  

in  subdivision   to  said  city,  to-wit:    (Here  insert  description 

of  the  part   of  the  alley  desired   to  be  vacated),  be,   and  the  same  is 

hereby  vacated,  and  the  costs  of  this  matter  taxed  at  $ ,  shall 

be  paid  by  the  applicants  herein. 


CHAPTER  XVIII. 
THE  ACTION  TO   QUIET  TITLE. 


SECTION. 

56(5.  The  statutory  action  to  quiet 
title  an  additional  remedy. 

5<j7.     The  action  before  the  statute. 

508.  The  action  to  quiet  title  and 
ejectment   distinguished. 

569.  The  nature  of  the  action. 

570.  The  action  may  be  brought  to 

settle  a  disputed  boundary, 
when. 

571.  The  action   to   quiet  title   un- 

der the  statute. 

572.  What  the  petition  should  al- 

lege. 


SECTION. 

573.  Answers,    cross-petitions    and 

counterclaims  in  the  action. 

574.  Necessity    of   alleging   posses- 

sion. 

575.  The    service    on    defendants — 

Actual    and  constructive. 

576.  The   nature   and  effect  of  the 

decree  quieting  title. 

577.  Trial    by   a    jury    may   be    de- 

manded in  the  action. 

578.  Injunctions     against     defend- 

ants may  be  granted,  when. 


Sec.  566.     The  statutory  action  an  additional  remedy. 

While  the  action  to  quiet  title  is  almost  always  brought  under 
the  statute,  yet  it  must  be  understood  that  there  are  two  ac- 
tions, the  one  in  chancery,  as  it  existed  before  the  statute,  and 
the  one  under  the  statute.  The  statutory  action  has  existed 
in  this  State  from  a  very  early  period.1 

Sec.  567.     The  action  before  the  statute. 

Iirfore  the  enactment  of  the  statute  providing  for  the  present 
action  to  quiet  title,  the  action  was  begun  by  a  bill  in  chan- 
cery, and  it  was  entertained  exclusively  within  the  jurisdic- 
tion of  the  chancery  courts.2  An  action  quia  timet  may  be 
brought  in  equity,  and  this  has  always  been  the  rule  in  this 
State  as  well  as  elsewhere.3 


Sec.  568.     The  action  to  quiet  title  and  ejectment  distinguished. 

The  action  to  quiet  title  and  the  action  of  ejectment  are  not 

interchangeable.     It   seems  that  possession  is  the  distinguisb- 


'  2  Bates'  Pleadings,  etc..  660, 
citing  Chase  Ki!i7.  Sit:  Collins  v. 
Collins,  19  O.  8.  471. 


-2  Yaple's  Code  Practice  and  Pre- 
cedents.   77.1. 

3  Duhme  v.  Mehner,  is  C.  C.  707: 
Darlington  v.  Compton,  'JO  C.  C  242. 

(170 


G71  THE    ACTION    TO    ^UIET    TITLE.  §  569 

ing  feature  in  these  actions.  In  the  action  to  quiet  title  pos- 
session of  plaintiff  must  be  alleged  and  proved,  and  if  plaintiff 
is  out  of  possession,  he  must  bring  the  action  of  ejectment,  and 
in  case  of  disputed  boundary  line,  the  question  of  possession 
will  determine  whether  the  action  is  to  quiet  title  or  eject- 
ment.4 

Sec.  569.     The  nature  of  the  action. 

The  purpose  of  the  action  was  to  suppress  litigation,  and 
prevent  multiplicity  of  suits.  The  action  should  be  granted  in 
every  case  in  which  a  claim  or  lien  upon  real  estate  appears 
to  be  asserted,  or  to  exist,  to  the  end  that  lands  should  be 
freed  from  every  lurking  and  unsubstantial  claim,  for  even 
the  suspicion  of  such  claim,  no  matter  how  ill-founded,  affects 
the  value  of  property,  when  on  sale. 

The  essential  elements  of  the  old  action  quia  timet — the 
nc  injuste — was  the  apprehension  of  some  injury  at  the  hands 
of  the  defendant,  some  loss  to  be  occasioned  to  the  plaintiff  by 
the  defendant's  act  or  omission  in  case  of  delay.  The  bill  must 
be  to  suppress  litigation.  In  the  action  to  quiet  title  under 
the  statute,  there  must  be  a  claim  of  present  right  by  the 
defendants,  capable  of  being  enforced  by  action,  or  by  their 
own  act.  and  which,  if  enforced,  would  interfere  with  plain- 
tiff's enjoyment  of  the  property.5 

The  adverse  claim  need  not  relate  to-,  or  affect,  the  right  of 
present  possession.  A  party  in  possession  claiming  a  fee  may 
bring  the  action  against  a  party  who  asserts  title  in  re- 
mainder, and  who  insists  that  the  party  in  possession  has 
only  a  life  estate. ,: 

It  would  seem  that  the  statute  is  intended  to  embrace  every 
description  of  claim  whereby  the  plaintiff  might  be  deprived 
of  the  property,  or  its  title  clouded,  or  its  value  depreciated. 
Indeed  the  plaintiff  has  the  right  to  he  quieted  in  his  title 
whenever  any  claim  is  made  to  real  estate  of  which  he  is  in 
possession,  the  effect  of  which  claim  might  be  litigation  or 
loss  to  him  of  the  property.7 

*  2  Bates' PI.  P.  and  Forms,  1527 ;  7  Rhea    v.    Dick.    34    O.    R.    424; 

Ellithorpe    v.    Buck,    17    0.    S.    72;  Borgart  v.  City,  etc.,  27  N.  J.  568; 

Bailey  v.  Hughs,  35  0.  S.  507.  Douglas  v.  Scott,  5   0.   195;    Joyce 

b  Collins  v.  Collins.   1!»  0.  S.  471.  v.  McAvoy,  31  Cal.  274. 

a  IMiea  v.  Dick.  34  0.  S.  420. 


§569 


MERWINE   ON    REAL    ACTIONS. 


672 


The  action  may  bo  maintained  to  require  the  delivering  up 
and  the  cancellation  of  instruments  which  are  voidable,  or  in- 
struments which  are  in  reality  void  and  yet  apparently  valid.8 
But  the  statutory  action  to  quiet  title  can  never  be  used  for 
the  sole  purpose  of  getting  an  opinion  from  the  courts  as  to 
plaintiff's  rights;9  for  it  has  always  been  the  policy  of  courts 
not  to  allow  the  bringing  of  an  action  when  no  relief  is  sought. 
beyond  the  advice  of  the  courts  as  to  the  rights  of  parties.10 
It  is  sufficient  that  the  claim  of  defendant  casts  a  cloud  upon 
the  title.  No  matter  how  slight  it  is,  the  court  will  enter  a 
decree  to  remove  it.11 

Tn  an  action  to  quiet  title,  if  plaintiff  shows  peaceable  pos- 
session under  a  conveyance,  even  though  defective,  and  the 
defendant  shows  no  title  or  right,  the  plaintiff  is  entitled  to 
have  his  title  quieted  as  against  such  defendant  and  those  claim- 
in  g  under  him.12  The  action  will  lie  to  correct  a  mistake  in 
the  execution  of  a  conveyance, 13  to  correct  deed  destroyed 
by  parties  under  misapprehension  that  the  destruction  of  the 
instrument  reconveyed  title, 14  to  correct  an  invalid  mechanic's 
lien,  15  to  determine  claim  of  city  as  to  ownership  of  a  part 
of  a  street.  16  to  clear  a  cloud  to  title  caused  by  defective  high- 
way proceedings,17  to  remove  cloud  under  tax  claim. 1S  to 
remove  unfounded  claim  of  certain  rights  under  a  forfeited 
Las  lease,  19  to  remove  cloud  against  title  caused  by  an  invalid 
mortgage,20  to  satisfy  liens  on  real  estate  sought  to  be  sold 
under  foreclosure  of  mortgage, 21  to  secure  title  to  real  estate 
by  adverse  possession,22  to  restrain  repeated  actions  in  ejeet- 


sDulimp  v.  Mehner,  18  C.  C.  70S. 

» The  Wabash,  etc.,  v.  The  To- 
ledo, etc..  7  X.  P.  198. 

io  Collins  v.  Collins,  19  0.  S.  4GS; 
Cory  v.  Fleming,  2!)  0.  S.  147:  Ry. 
v.  Commissioners,  30  0.  S.  120; 
Rothgeb   v.   Monk.  35  O.  S.  503. 

'■  Lowmiller  v.  Fouscr,  52  0.  S. 
12:;. 

12  Dettor  v.  Holland,  r>7  0.  S.  505. 

i  ■  i  lements  v.  Noble,  K)  0.  S.  41; 
Graham  \.   Burgroff,  120  C.  C.  747. 

1 1  Spangler  v.  Dukes,  3!)  0.  S. 
642. 

is  Baldwin  v.  Detzel,  1  Iddings 
F.   R.  D.   138. 


if  Miller  v.  Cincinnati,  5  C.  C. 
583. 

it  Lowmiller  v.  Fouser,  52  0.  S. 
123. 

is  Baldwin  v.  Ruse,  8  A.  L.  R. 
556;  Thomas  v.  While.  2  0.  S.  540. 

is  Dettor  v.  Holland.  57  O.  S.  4!>2. 

20  Baird  v.  Ramsey,  2  C.  C.  N.  S. 
492. 

2i  Winemiller  v.  Laugblin,  51  0. 
S.     121. 

22  Buchanan  v.  Roy.  2  O.  S.  252: 
Thomas  v.  White.  2  0.  S.  540; 
Douglas  v.  Scott.  5  0.  104:  and  in 
such  ease  color  of  title  is  not  neces- 
sary.   Schulte  v.  Oberd,  4  N.  P.  207; 


673  THE   ACTION    TO    QUIET    TITLE.  §§570-572 

ment  as  well  as  repeated  acts  of  trespass,  and23  to  remove  a 
cloud  upon  title  occasioned  by  terms  in  a  will.-4 

Sec.   570.     The  action  may  be  brought  to  settle  a  disputed 
boundary,  when. 

When  the  action  is  brought  under  the  statute  by  a  party 
iu  possession,  alleging  that  he  is  the  owner  in  fee  and  in  pos- 
session of  land  described,  and  that  the  defendant  claims  an 
interesl  therein  because  of  a  dispute  as  to  the  boundary  line 
between  them,  the  court  will  entertain  the  action  under  the 
statute1"' 

Sec.  571.     Action  to  quiet  title  under  the  statute. 

An  action  may  be  brought  by  a  person  in  possession,  by 
himself  or  tenant,  of  real  property,  against  any  person  who 
claims  an  estate  or  interest  therein,  adverse  to  him,  for  the 
purpose  of  determining  such  adverse  estate  or  interest;  or 
such  action  may  be  brought  by  a  person  out  of  possession, 
having  or  claiming  to  have  an  estate  or  interest  in  remainder 
or  reversion  in  real  property,  against  any  person  who  claims 
to  have  an  estate  or  interest  therein,  adverse  to  him,  for  the 
purpose  of  determining  the  interests  of  the  parties  therein.20 

Sec.  572.     What  the  petition  should  allege. 

In  commenting  upon  what  the  petition  should  contain,  one 
of  our  courts  said  that  the  plaintiff  must  state  the  facts  con- 
stituting his  cause -of  action  in  ordinary  and  concise  language. 
It  must  allege  a  primary  right  possessed  by  plaintiff  ami  a 
corresponding  duty  devolving  upon  the  defendant,  a  delict 
or  wrong  done  by  the  defendant,  which  consists  of  a  breach 
of  such  primary  right  and  duty,  and  a  remedial  right  in  favor 
of  the  plaintiff,  and  a  remedial  duty  resting  on  the  defendant 

Paine  t.  Skinner,  8  0.  159:   Yetzer  C.  242:  Murray  v.  Murray,  .">  A.  L. 

v.  Thoman,   17   0.   S.   130:    McNeely  R.  2fi(i:   Rhea  v.  Dick.  34  U  S.  420. 

v.   Langhan,   22   ( >.   S.   32;    Poag  v.  25  Bailey  v.  Hughs,  35  O.  S.  597; 

Shaw,  10  C.  C.  448;  Main  v.  Streng,  Ellithorpe    v.    Buck,    17    O.    S.    72: 

13  0.   I).    Hi;.  Culver  v.  Ropers.  33  0.  S.  537:  Pat- 

23 Marsh  v.  Rud,  10  0.  347:  Lowe  tison  v.  Jordon,  3  C.  C.  233. 

v.  Lowry.  4  O.  77:  Bailery  v.  Hughes,  -'6  Oen'l     Code,     §11001      (R.     S. 

35   O.   S.   507.  §5770).     See  Xo.  424  and  following 

24  Darlington    v.    Compton,    20    C.  for    form    for    petition    and    all    the 

forms   of    procedure   in    this    action. 


§§573,574 


MERWINE   ON    KEAL    ACTIONS. 


674 


springing  from  this  delict,  and,  finally,  the  remedy  or  relief 

itself. 

A  petition  must  state  the  facts  which  are  the  occasion  of 
the  primary  right  and  duty,  and  the  facts  which  constitute  the 
defendant's  wrongful  act  or  omission.  The  ownership  and 
possession  of  the  lands  are  the  facts  which  entitle  the  plaintiff 
to  hold  his  title  and  possession  in  peace,  and  make  it  the  duty 
of  the  defendant  not  to  cast  a  cloud  upon  his  title,  or  to  inter- 
fere with  his  possession.  Asserting  a  claim  or  title  adverse  to 
the  plaintiffs'  is  the  delict  or  wrong,  on  the  part  of  the  de- 
fendants.27 » 

The  adverse  claim  of  the  defendants  should  be  averred.  The 
usual  language  of  the  petition  is  that  the  defendant  claims 
some  interest,  or  pretended  interest  or  title  in  the  premises 
described,  adverse  to  plaintiff,  and  that  the  same  will  be  for- 
ever barred,  unless  set  forth  in  the  action  by  an  appropriate 
pleading. 


28 


Sec.  573.     Answers  and  cross-petitions  in  the  action. 

The  defendants  having  valid  claims  should  assert,  them 
by  answer  or  by  answers  and  cross-petitions  in  the  action  as 
in  other  cases.  In  the  note  below  will  be  found  the  cases 
where   such   pleadings   including   a   counterclaim   were   filed 


■j:> 


Sec.  574.     Necessity  of  alleging  possession. 

The  naked  possession  of  real  estate  is  sufficient  to  enable 
the  plaintiff  to  maintain  an  action  to  quiet  title,  and  unless  a 
better  title  be  shown  by  the  defendant,  the  plaintiff  will   be 


27  Lamb  v.  Boyd,  4  C.  €.  501.  As 
to  the  allegations  of  the  petition, 
see,  further,  Lake,  etc.,  v.  Cleve- 
land. 32  W.'L.  B.  200:  Bailey  v. 
Hughes,  35  O.  S.  597;  Bartholomew 
v.  Lutheran,  35  0.  S.  567;  Clark  v. 
Hubbard.  8  O.  382;  Ryan  v.  O'Con- 
nor, 41  0.  S.  368;  Lusby  v.  Jones, 
31  W.  L.  B.  70:  Jenkins  v.  Artz, 
7  N.  P.  371  :  Raymond  v.  Toledo.  57 
O.  S.  271;  Howard  v.  Levering,  8 
C.  C.   614. 

28  Winemiller  v.   Laughlin,  51    O. 

S.   421:    Lake    etc.,    v.    Cleveland.   32 

W.  L.  1'..  206;   Bailey  v.  Hughes,  35 

O.    S.    597;     Reynolds    v.   Bank,    112 


U.   S.   405:    Darlington   v.  Compton, 
20  C.  C.  242. 

29Waterson  v.  Cry,  5  C.  C.  347; 
Baldwin  v.  Keese,  8  A.  L.  R.  556; 
Graham  v.  Purgraf,  12  0.  C.  D. 
747:  affirmed  in  5!)  O.  S.  603:  Lake, 
etc..  v.  Cleveland.  32  W.  L.  B.  206; 
Hubbard  v.  Clark.  8  0.  382:  Har- 
vey v.  .(ones.  1  D.  65;  Cen'l  Code, 
§§11901,  11002  (11.  S.  §5770, 
§5780)  :  Bailey  v.  Hughes.  35  0.  S. 
599;  Bartholomew  v.  Lutheran,  35 
0.  S.  567:  Bramlege  v.  Winder,  6 
0.  Dec.  310.  Failure  tu  answer  con- 
fuses allegations  of  the  petition. 
McKenzee  v.   Pencil.    15   0.   S.    1G2. 


675 


THE    ACTION    TO    QUIET    TITLE. 


$574 


entitled  to  a  decree.30  If  any  one  be  in  possession  of  land 
under  color  of  title,  any  one  claiming  adversely  to  him  must 
prove  a  better  title  in  order  to  justify  disturbing  him  in  his 
possession.  So  one  in  possession  of  land,  though  he  is  not 
able  to  show  any  title,  may  have  trespass  against  a  stranger 
who  enters  upon  it. 

Possession  is  a  condition  precedent  to  a  right  of  action. 
Therefore,  the  possession  must  be  averred  in  a  petition,  and 
this  must  be  proven.  No  averment  as  to  title  is  necessary  under 
Gen'l  Code,  §  11901  (R.  S.  §  5779).  An  averment  of  possession 
in  words  of  the  statute  is  sufficient.31  The  statute  has  ex- 
tended the  general  equity  doctrine,  giving  bills  of  peace,  where 
the  action  is  to  quiet  title,  more  of  the  character  of  lulls 
quia  timet,  thus  enabling  any  person  in  possession,  by  himself 
or  tenant,  of  real  property  even  by  an  equity  title  in  fee  or 
for  a  term,  to  maintain  a  petition  to  quiet  title.32 

A  plaintiff  in  possession  of  real  estate,  and  having  the  later 
legal  title,  may  ask  the  aid  of  equity,  under  the  statute,  to 
quiet  the  title  against  those  pretending  to  claim.33  It  was 
held  by  the  court  that  the  decision  of  this  court  in  Douglas  v. 
McCoy,  5  O.  522,  was  to  supply  this  precise  omission  (the  re 
quirements  that  plaintiff  must  first  establish  his  right  at  law), 
that  our  several  statutory  provisions  on  the  subject  were 
enacted.  These  provisions  are  found  in  the  acts  of  1810.  182-1, 
and  1831,  substantially  as  in  the  557th  section  of  the  code, 
now  Section  5779  of  the  statute,  with  the  difference  that  by 
the  latter,  possession  alone,  instead  of  legal  title  and  posses- 
sion, is  declared  to  be  a  sufficient  basis  for  the  action.  The 
only  effect  of  this  provision  of  the  statute  is  to  substitute  the 
plaintiff's  possession  for  the  establishment  of  his  right  by 
•Hals  at  law.     On  all  other  essentials  the  remedv  by  bill  of 


™\Yaterson  v.  Fry.   5   C.   C.  354. 

3i  Lusby  v.  Jones.  31  W.  L.  B. 
70:  citing  1  Dis.  65;  34  O.  S.  420: 
2  Yaple's  Code  Pr.  773:  1  Wash- 
burn on  Real  Property,  35 :  2  Bates' 
PI.  and  Pr.  65-A. 

32Maines  v.  Henkle,  3  W.  L.  M. 
597:  citing  2  Story  Equity.  §825: 
Lowe  v.  Lowery,  4  O.  77. 

33  Douglas  v.  Scott.  5  O.  105.  In 
the  bill  under  the  statute,  for  quiet- 
ing possession,  the  complainant 
must    set    forth    and    prove    actual 


possession.  This  was  under  t  lie 
statute  as  it  stood  in  1838.  Hub- 
bard v.  Clark,  8  O.  382.  In  an- 
other case  it  was  held  that  after  the 
right  to  real  estate  has  been  satis- 
factorily  established  at  law.  equity 
will  quiet  the  title  against  any  fur- 
ther disturbance.  It  is  not  ma- 
terial what  number  of  trials  have 
been  had.  whether  two  or  more,  so 
that  the  right  be  satisfactorily  es- 
tablished. Marsh  v.  Reed,  10  O. 
347. 


§§575,576  MEBWINE    ON    REAL    ACTIONS.  676 

peace  remains  the  same  as  under  the  old  practice.34  It  has 
been  held  that  the  possession  of  a  vendee,  under  a  bond  for  a 
deed,  is  a  sufficient  possession  of  the  vendor  to  entitle  him  to 
maintain  a  bill  quia  timet.35 

Sec.  575.     The  service  on  defendants  actual  and  constructive. 

The  defendants  are  served  with  summons  as  in  other  actions, 
and  non-resident  defendants  whose  residence  is  known  and 
unknown  are  served  as  in  other  cases  by  publication,  ami 
where  it  appears  by  affidavit  that  the  name  and  residence  of 
,in  unknown  heir  can  not  be  ascertained,  he  may  be  served  by 
publication.  Service  by  publication  upon  an  unknown  heir  in 
the  alternative  is  insufficient.  The  service  by  publication  can 
not  be  had  upon  the  unknown  heir  of  a  living-  person. 3S 

Sec.  576.  The  nature  and  effect  of  the  decree  quieting  title. 
The  decree  quieting  title,  like  every  other  judgment  or  de- 
cree of  a  court,  is  not  subject  to  collateral  attack.  It  can  be 
impeached  only  by  an  action  brought  for  that  purpose.  The 
action  is  not  merely  to  confirm  possession;  it  goes  much 
farther;  it  determines  all  matters  in  dispute  between  the  par- 
ties in  the  action  as  to  the  title.  The  action  when  successfully 
prosecuted  sweeps  away  all  of  the  liens  and  claims  of  the  de- 
fendants and  the  judgment  of  the  court  is  conclusive  as  to  all 
of  the  questions  within  the  issue,  and  which  might  have  been 
litigated.37 

34  Collins  v.  Collins,  19  0.  S.  470;  troversy.'  By  tins  it  was  not  in- 
Harvey   v.   Jones  et   ah,    1   Dis.   65.       tended  to  assert  that  the  complain- 

\   possession  adverse  to  the  grantor  ant    himself    must    prove    the    land; 

at  tin-  time  of  the  purchase  is  eon-  for   in  considering   the   cross-bill    of 

structive    notice    to    the    vendee    of  Hubbard    v.    Clark,    the    court    held 

the  occupant's  title.     Ibid.  that    Huhbard    had    the    actual    pos- 

35  Thomas  v.  White,  2  O.  S.  540.  session  —quired  by  the  statute,  al- 
It  was  -aid  by  the  court,  by  Thur-  though  the  fact  was  that  the  land, 
man.  Judge:  "We  are  of  opinion  or  at  least  some  part  of  it.  was  in 
that  the  complaint  shows  a  suffi-  the  actual  occupancy  of  his  tenant-. 
cjen1  pi  ssession  to  entitle  him  to  In  the  remark  by  the  court.  'Hub- 
maintain  a  hill  <///<'"  timet.  In  hard,  by  himself  or  tenants.'  was  in 
(lark    v.    Hubbard,    8    O.    385,    the  possession." 

c  mi.    speaking   <>f    the    statute   re-  86 Archer   v.    Brockschmidt.    5   X. 

lating    to   such  hill-,    said:    'By  this  P.  349;  Land)  v.  Boyd,    t  C.  C.  499; 

section    of   the    law.   a    complainant.  Winemiller  v.  Laughlin,  5]    o.  S.  421. 

in  order  to  maintain  his  hill,  mn-t  " Desnoyers  v.  Dennison,  19  C.  C. 

show  not  onlv  thai  he  is  vested  with  320:    Wabash,  etc.,  v.    Medo,  7   N. 

the    legal    title,   bui    of   the    actual  P.   198.     See   No.  433  for  form  for 

possession    of    the    land    under    eon-  decree. 


677  THE    ACTION    TO    QUIET    TITLE.  §  §  577,  578 

Sec.  577.     Trial  by  a  jury  may  be  demanded  in  the  action. 

Cases  may  arise  under  our  statute  in  which  the  parties  may 
have  a  constitutional  right  to  have  the  issues  of  fact  tried  by  a 
jury.  Should  such  cases  arise,  the  court  is  competent  to  au- 
thorize such  trial,  either  in  the  case,  or  by  requiring  a  separate 
action  to  be  brought  before  the  rendition  of  a  final  decree.38 

Sec.    578.     Injunction    against    defendants    may    be    granted, 
when. 

If  the  plaintiff,  in  his  action  to  quiet  title  has  made  out  a 
ease  entitling  him  to  relief  against  claims  of  defendants  in  the 
action,  he  may  obtain  a  perpetual  restraining  order  against 
the  alleged  claims  of  the  defendant,  provided  he  has  asked  in 
his  prayer  for  relief,  an  injunction.30 


38  Rhea    v.    Dick,    34    0.    S.    425 
Elithorpe    v.    Buck,    17    0.    S.    72 
Gladwell   v.    Hume,    18   C.   C.   845 
but  see  Skerrett  v.  Presbyterian,  41 
0.  S.  606. 


39  Bartholemew  v.  Lutheran,  35 
0.  S.  567;  Marsh  v.  Reed,  10  0.  S. 
47;   Pittsburg  v.  Ry.,  20  C.  C.  561. 


FORMS. 


PROCEEDINGS  QUIETING  TITLE   AGAINST  UNKNOWN 

HEIRS. 


FORMS. 

FORMS 

428.     The  petition. 

432. 

42!).     The    affidavit    for    service    by 

433. 

publication. 

434. 

430.     Entry     ordering     service      by 

publication. 

435. 

431.     The  service  by  publication. 

No.  428.     The  petition  in  such  case. 

Court  of  Common  Pleas, 


The  proof  of  publication. 
The    decree    quieting   title. 
Another    form    for    a    petition 

in  the  action  to  quiet  title. 
Another      form      for      decree 

quieting  title. 


County,  Ohio. 


S.  J.  B. 


Plaintiff, 


vs. 


No- 


The  Unknown  Heirs  at  law  and  Devisees 

(if  any  there  are)  of  J.  D.,  Deceased, 
the  Unknown  Heirs  at  law  and  Devisees 

(if  any  there  are)  of  E.  D.,  Deceased, 
the  Unknown  Heirs  at  law  and  Devisees 

( if  any  there  are)  of  E.  B.  D..  Deceased, 
and  the  Unknown  Heirs  at  law  and 
Devisees  (if  any  there  are)  of  J.  W., 
Deceased. 

Defendants. 

The  plaintiff  is  the  owner  in  fee  simple  and  in  actual  and  peaceable 
possession   of   the   following   described    real    estate   situated    in    the   County 

of ,   in  the   State  of   Ohio,   and   in  the   City   of  — ,   to-wit: 

(Here    insert    description   of    real    estate). 

On   or  about  the  day  of  


-,  A.   D.   18- 


-.   J.   D.,   the 


ancestor  of  part  of  the  defendants  herein,  became  the  owner  and  seized 
in  fee  simple  by  patent  from  the  United  States  (Here  insert  description 
of  real  estate) . 

On  or  about  the  — — — —  day  of  ■ ■ — ,  A.  D.   18 ,  the  said   -I. 

D.  conveyed  an  undivided  one-fourth  part  of  said  real  estate,  together 
with  other  real  estate,  to  E.  D.  and  E.  B.  D.,  the  ancestors  of  part  of 
the    defendants    herein,   which    said    conveyance    is    recorded    in    Deed    Book 

,  page  of  said  —  County  records. 

678 


679  FORMS. 

At  some  time  subsequent  t->   said  first  day  of  ,  A.  D.   18 , 

and    prior   to    the   day  of ,    A.   D.    18 ,   by   deed,   or 

deeds,  duly  executed  and  delivered,  the  said  J.  D.,  E.  D.  and  E.  B.  D. 
sold  and  conveyed  to  one  D.  B.  the  following  real  estate,  to-wit:  (Here 
describe   it ) . 

Said  deed  or  deeds  for  tracts  aforesaid  were  not  recorded,  or  if  recorded, 
the  record  thereof  has  been  destroyed. 

The   original    deed   or   deeds   have  been   lost   and   cannot   now   be   found 

and   recorded.     On  the  day  of  ,  A.   D.    18 ,   said  D. 

B.  and  E.  B.,  his  wife,  duly  sold  and  conveyed  said  real  estate  so  conveyed 
to  him  as  aforesaid,  together  with  other  real  estate,  to  one  W.  D.  by 
deed  of  general    warranty,   duly  executed   and   delivered,   which   said   deed 

was   filed   for   record  on   the  day  of  ,    18 ,   and  was 

duly    recorded    in    Deed    Book   ,    page   of    said    County 

records. 

The  said  W.  D.,  on  said  day  of  ,  A.  D.  18 ,  took 

actual  and  absolute  possession  of  said  real  estate,  and  the  plaintiff  herein 
holds  and  owns  the  real  estate  first  described  by  direct,  clear  and  inde- 
feasible chain  of  title  from  said  W.  D.  by  deeds  of  conveyances,  duly 
executed  and  delivered  by  the  grantee  of  said  W.  D.  and  his  assigns  and 
those  holding  under  and  through  him.  Possession  actual,  continuous,  ad- 
verse and  notorious  was  taken  and  held  by  each  of  said  grantees  of  6aid 
title,  from  their  grantors  respectively  under  their  said  grants  of  said 
premises  from  said  D.  B.  down  to  the  plaintiff  herein. 

Plaintiff's  chain  of  title  to  said  real  estate,  beginning  with  said  con- 
veyance from  said  D.  B.  to  said  W.  D.,  down  to  the  present  date,  is 
unbroken  and  perfect,  and  plaintiff  holds  and  owns  said  real  estate  through 
and  under  said  W.  D.  and  those  successively  holding  under  him  ever  since 

said   day   of  ,   A.   D.    18 ,   and   such   possession   has 

been  ever  since  wholly  adverse  to  the  claims  and  interest  of  the  defendants 
herein,  and  each  of  them,  and  their  respective  ancestors. 

Plaintiff  herein  has  made  diligent  search  for  the  heirs  at  law  and 
devisees  of  defendants  herein,  but  has  been  unable  to  find  or  ascertain  the 
names  and  residences  of  them,  or  either  of  them,  or  any  trace  thereof. 

The  defendants,  the  unknown  heirs  at  law  and  devisees  of  J.  W.,  de- 
ceased, claim  an  estate  and  interest  in  said  plaintiff's  land  herein  first 
descril>ed,  or  some  part  thereof,  the  nature  and  extent  of  which  said  plaintiff 
is  unable  to  state  and  the  said  plaintiff  asks  that  the  said  defendants  be 
compelled  to  answer  in  this  action  as  to  the  nature  and  extent  of  their 
said  claims  or  interest,  or  be  forever  barred  and  enjoined  from  in  any  way 
asserting  or  claiming  an  estate  or  interest   in  said   plaintiff's   real  estate. 

The  other  defendants  herein  claim  an  estate  or  interest  in  said  plaintiff's 
real  estate  adverse  to  said  plaintiff's  rights  therein.  By  reason  of  the 
premises  a  cloud  is  cast  upon  the  title  of  said  plaintiff's  real  estate,  which 
greatly  and  unjustly  depreciates  the  value. 

Wherefore  plaintiff  prays  that  the  defendants  herein  may  be  compelled 
to  set  forth  their  interest  in  said  real  estate,  if  any  they  have;  that  the 
claims  of  said  defendants  and  each  of  them  may  be  adjudged  to  be  null 
and  void;  that  said  plaintiff's  title  may  be  quieted  against  said  defendants' 


MERWINE    ON    REAL    ACTIONS.  680 

claims,  and  they  and  each  of  them  be  enjoined  from  asserting  such  claim 
against  said  real  estate;  that  the  cloud  thereon  may  be  removed,  and  for 
such  other  and  further  relief  as  equity  and  the  nature  of  the  case  may 
require,  and  to   the  court  may   seem  just,  necessary  and   proper. 


Attorney  for  Plaintiff. 
(This  petition   is  verified  as   in  other  cases.) 

No.  429.     The  affidavit  for  service  by  publication. 

(Same  caption  as  in  the  petition.) 

State  of  Ohio,  County,   ss.: 

,  of  lawful  age,  being  duly  sworn,  says  that  he  is  the  attorney 


of  record  of  S.  J.  B.,  the  plaintiff  in  this  action;    that  the  said   S.  J.  B. 

is   a   non-resident   of   "County,   Ohio,   aforesaid;    that   the   names 

and  residences  of  the  heirs  at  law  and  devisees  (if  any  there  are)  of 
J.  D.,  deceased,  of  the  heirs  at  law  and  devisees  (if  any  there  are)  of 
E.  D.,  deceased;  of  the  heirs  at  law  and  devisees  (if  any  there  are)  of 
E.  B.  D.,  deceased,  and  of  the  heirs  at  law  and  devisees  (if  any  there  are) 
of  J.  W.,  deceased,  are  each  and  all  of  them  unknown  to  said  plaintiff; 
that  said  names  and  residences,  or  either  of  them,  cannot  with  reasonable 
diligence  be  ascertained,  and  that  this  cause  of  action  is  one  of  those 
mentioned  in  §  5053,  R.  S.  of  Ohio. 


Sworn  to  before  me  and  subscribed   in  my   presence  by  said 
on  this  day  of  ,  A.  D.   18 . 


"Notary  Public  in  and  for County,  Ohio. 

No.  430.     Entry  ordering  service  by  publication. 

On   motion   of   plaintiff,   by   her   attorney,   and   it   appearing   from   the 

affidavit  of  her  said  attorney  that  she  is  a  non-resident  of  said 

County,  Ohio;  that  the  names  and  residences  of  the  heirs  at  law  ami 
devisees  (if  any  there  are)  of  J.  D.,  deceased;  of  the  heirs  at  law  and 
devisees  (if  any  there  are)  of  E.  D.,  deceased;  of  the  heirs  at  law  ami 
devisees  (if  any  there  are)  of  E.  B.  D.,  deceased,  and  the  heirs  ;1t  law 
and  devisees  (if  any  there  are)  of  J.  W.,  deceased,  are  each  and  all 
unknown  to  the  said  plaint  ill',  and  their  places  of  residence  cannot  with 
reasonable  diligence  lie  ascertained; 

It  is  hereby  ordered  by  the  court  that  as  to  said  heirs  and  devisees, 
defendants  herein,  service  be  made  in  this  action  by  publication  for  six 
consecutive  weeks,  in  manner  prescribed  by  the  statute  in  case  of  non- 
resident  defendants. 

No.  431.     The  service  by  publication. 

The  unknown  heirs  at  law  and  devisees  (if  any  there  are)  of  J.  Y).. 
deceased,   the   unknown   heirs  at   law   and   devisees    (if   any  there   are)    of 


681  FORMS. 

K.  D.,  deceased,  the  unknown  heirs  at  law  and  devisees  (if  any  there  are) 
of   E.   B.    D.,   deceased,    and   the    unknown    heirs    at   law   and   devisees    (if 

any  there  are)    of  J.  \Y.,  deceased,  will  take  notice  that  on  the  

day  of ,  18 ,  S.  J.  B.  filed  her  petition  in  the  Court  of  Common 

Pleas  of  County,  Ohio,  in  case  Xo.  ,  against  them  and  each 

of  them,  setting  forth  that  she  is  the  owner  in  fee  simple  and  in  actual 
and  peaceahle  possession  of  the  following  described  real  estate,  situated  in 

the  County  of ,  in  the  State  of  Ohio,  and  in  the  City  of , 

to-wit:      (Here  describe  real  estate);   that  on  or  about  the  day 

of  ,  A.  D.   18 ,  J.  D.,  the  ancestor  of  part  of  the  defendants 

therein,  became  the  owner  and  seized  in  fee  simple,  by  patent  from  the 
United   States,  of  the  following  real  estate,   to-wit:       (Here   describe   it), 

which    said    patent    is    recorded    in    Deed    Book    ,    page    of    said 

County  records;  that  on  or  about  the  day  of  , 

A.    D.    18 ,   the   said  J.   D.   conveyed    an   undivided part    of   said 

real  estate,  together  with  other  real  estate  to  E.  D.  and  E.  B.  D..  the 
ancestors  of  part  of  the  defendants  therein,  which  said  conveyance  is  re- 
corded in  Deed  Book  ,  page  of   said  County  records; 

that    at   some  time   subsequent    to    said  day   of  ,   A.   D. 

18 ,  and  prior  to  the day  of .  A.  D.  18 ,  by  a  deed 

or  deeds  duly  executed  and  delivered,  the  said  J.  D.,  E.  D.  and  E.  B.  D 
duly  sold  and  conveyed  to  one  D.  B.  the  following  real  estate,  to-wit:  (Here 
describe  it)  ;   that  said  deed  or  deeds  for  said  tract  was  not  recorded,  or  if 

recorded,  the  record  thereof  has  been  destroyed:   that  on  the  day 

of .  A.  D.  18 ,  the  said  D.  B.  conveyed  said  real  estate  last  de- 
scribed to  one  W.  D. ;  that  said  W.  D.,  on  last  mentioned  date,  took  actual 
and  absolute  possession  of  the  land  so  conveyed  to  him:  that  plaintiff 
holds  and  owns  said  real  estate  herein  first  described,  under  and  through 
said  W.  D.  by  a  clear  and  indefeasible  chain  of  title;  that  plaintiff  through 
the  said  W.  D.  and  his  assignees  and  grantees,  has  had  actual,  open, 
notorious,   continuous,  adverse  and  exclusive   possession  of  plaintiff's   said 

real  estate  herein  first  described,  ever  since  said day  of  , 

A.  D.  18 .     It  is  further  set  forth  in  said  petition  that  the  defendants 

therein,  the  unknown  heirs  at  law  and  devisees  (if  any  there  are)  of  J. 
W.,  deceased,  claim  an  estate  or  interest  in  said  plaintiff's  said  real  estate, 
or  some  part  thereof,  the  nature  and  extent  of  which  plaintiff  is  unable 
to  state,  and  that  the  other  defendants  claim  an  interest  in  said  real  estate 
adverse  to  said  plaintiff's  rights  therein,  by  reason  whereof  a  cloud  is  cast 
upon  the  title  to   said   premises. 

The  prayer  of  said  petition  is  that  the  defendants  may  be  compelled 
to  set  forth  their  intersts  in  said  real  estate;  that  said  claim  of  said  de- 
fendants may  be  adjudged  to  be  null  and  void:  that  plaintiff's  title  to 
said  real  estate  may  be  quieted  against  said  defendants'  claims,  and  they 
be  forever  enjoined  from  asserting  such  claim  against  said  land:  that  the 
cloud  thereon  may  be  removed,  and  for  such  other  and  further  relief  as 
equity  and  the  nature  of  the  case  may  require  and  to  the  court  may  seem 
just  and  proper. 

Said  defendants  are  required  to  answer  said  petition  on  or  before  the 


'TERWINE   ON    REAL    ACTIONS.  682 

(jay    0f    ,    A.    3).    18 ,    or    judgment    will    be    taken 

against  them.  > 

S.  J.  B., 

Plaintiff. 

No.  432.     The  proof  of  publication. 

State  of   Ohio,   County,   ss.: 

,    being   duly    sworn,    deposeth    and    saith,    that   the   notice,   of 

which   a   true  copy   is   hereunto  attached,  was   published   in   the , 

a   daily  newspaper   printed   in  and   in  general   circulation   in   said  — 

County,  Ohio,  once  a  week  for  six  consecutive  weeks,  commencing  , 

18 ,   to-wit:    on .  • 


Sworn    to   and   subscribed   before   me,    this   day   of 

18 ,  as  witness  my  hand  and  seal  of  office. 


Notary  Public  in  and  for County,  Ohio. 

No.  433.     The  decree  quieting  title. 

(Same  caption  as  in  the  petition.) 

This  day  came  the  plaintiff,  and  the  defendants  and  each  and  all  of 
them  made  default,  and  came  not,  and  thereupon  this  cause  was  by  order 
of  the  court  assigned  for  hearing,  and  came  on  regularly  to  be  heard,  and 
the  same  was  heard  upon  the  petition  and  the  evidence  adduced,  and  was 
submitted  to  the  court;  and  on  consideration  whereof,  the  court  being  fully 
advised  in  the  premises,  doth  find  that  the  defendants  herein,  and  each 
and  all  of  them,  have  been  duly  and  legally  served  by  publication  with 
notice  of  the  pendency  of  this  action,  and  the  object  and  prayer  of  said 
petition,  and  that  said  defendants  and  each  and  all  of  them  are  in  default 
for  answer  and  demurrer  to  the  petition  herein  and  that  the  allegations 
of  said  petition  are  confessed  by  said  defendants  to  be  true,  and  that  said 
allegations  of  said  petition  are  in  fact  true,  and  the  court  doth  further 
find  that  the  plaintiff  is  the  owner  in  fee  simple  and  in  actual  and  rea- 
sonable possession  of  the  premises  first  described  in  said  petition,  to-wit: 

(Here  describe  it);    that  prior  to  the  day  of  ,   18 , 

said  J.  D.,  E.  D.,  and  E.  B.  D.,  each  then  in  full  life  and  since  deceased, 
sold  and  conveyed  in  fee  simple  to  said  D.  B.  mentioned  in  said  petition 
by  a  good  and  sufficient  deed  of  general  warranty  duly  executed  and  de- 
livered, the  following  described  real  estate  mentioned  in  said  petition,  to- 
wit:  (Here  describe  it)  ;  that  said  deed  and  the  record  thereof  has  been 
lost  and  destroyed;  that  the  aforesaid  real  estate,  now  owned  and  possessed 
by  plaintiff  was.  and  is  contained  in,  and  was  and  is  part  and  parcel 
of  the  aforesaid  tract  of  real  estate  so  sold  and  conveyed  by  said  J.  D., 
deceased,  to  said  D.  B.  as  aforesaid;  that  plaintiff  holds  and  owns  the 
real  estate  in  said  petition  first  described  by  direct,  clear  and  indefeasible 
chain  of  title  from  said  D.  B.  and  those  holding  under  and  through  him; 
that  possession  actual,  continuous,  open,  adverse  and  notorious  was  taken 
and  held  by  each  of  the  grantees  of  said  title  from  their  grantors  respec- 
tively under  their  said  grants  of  said  premises  from  said  13.  B.  down  to 


683  FORMS. 

the  plaintiff  herein;  that  plaintiff  and  those  to  whom  he  holds  and 
claims  have  been  in  actual,  open,  notorious,  adverse  and  continuous  posses- 
sion of    said   premises   ever    since    said   day   of   ,    A.    D. 

18 ,  up  to  this  time;   that  at  the  time  of  the  beginning  of  this  action 

plaintiff  was  and  now  is  in  full  possession  of  the  real  estate  first  described 
and  had  and  has  the  legal  estate  therein  in  fee  simple,  and  was  and  is 
entitled  to  the  possession  of  same;  that  neither  the  defendants  nor  any  of 
them,  have  any  estate,  interest,  claim  or  title  of,  in  or  to  said  plaintiff's 
real  estate,  or  any  part  thereof;  that  plaintiff  is  entitled,  and  ought  to 
have  her  title  to  said  premises  herein  first  described,  and  her  possession 
thereof  quieted  as  against  each  and  all  of  said  defendants  as  prayed  for 
in  her  petition. 

It  is  therefore  ordered,  adjudged  and  decreed  by  the  court  that  'the 
title  and  possession  of  said  plaintiff  to  all  and  singular  premises  in  the 
petition  described,  (Here  describe  it)  be  and  the  same  are  hereby  quieted 
as  against  the  defendants,  and  each  and  every  one  of  them,  and  all  persons 
claiming  under  them  or  any  of  them. 

Said  defendants  are  hereby  ordered  to  convey  said  premises  to  plaintiff 
herein,  by  a  good  and  sufficient  deed  in  fee  simple,  within  ten  days  from 
the  entry  of  this  decree,  or  in  default  thereof,  this  decree  shall  operate 
in  such  conveyance,  and  said  defendants  herein  and  each  of  them  are  for- 
ever enjoined  from  setting  up  any  claim  to  said  real  estate,  or  any  part 
thereof,  adverse  to  the  title  and  possession  of  said  plaintiff,  her  heirs  or 
assigns  thereto,  and  it  is  further  ordered  that  the  plaintiff  pay  thw  costs 
herein   taxed  at   $ . 

No.  434.     Another  form  for  petition  to  quiet  title  to  real  estate. 

Court  of  Common  Pleas,  — County,  Ohio. 

,    Plaintiff, 

vs.  Petition. 
,  Defendant. 


Plaintiff  is  seized  in  fee  simple,  and  is  in  actual  possession  of  the 
following  described  real  estate,  in  which  said  defendant  claims  an  estate 
and  interest  adverse  to  the  plaintiff,  to-wit:  (Here  give  pertinent  descrip- 
tion of  the  real  estate.) 

Plaintiff    derived    his    title    tn    said     lands    and    tenements    under    the 

following   clause   contained    in    the    last    will    and   testament    of , 

deceased : 

"I  give,   devise,  and   bequeath   to  my  brother.  ,    (the   plaintiff), 

my  farm,  situate  in  the  County  of  ,  aforesaid,  on  the  road  leading 

from    to    ■ — ,    containing    about    one    hundred    and 

acres"     (the    lands    above    described ) .      "It    is    my    will    that    if    my    son, 

.  should  survive  my  brother,  ,  aforesaid,  that  said  farm, 

at  the  death  of  my  said  brother,  shall  go  to  my  son,  ." 


Said    son.   ,    is    dead,    and    the    said    defendant,   ,    who 

claims  under  and  through  him,  avers,  and  gives  out  in  words  and  speeches, 
that  the  plaintiff  has  but  a  life  estate  in  said  premises,  and  that  the 
defendant   owns    the    remainder,    after    his    decease,    in    fee   simple,    to    the 


MERWINE    ON    REAL    ACTIONS.  684 

great    injury   and  damage  of   the   plaintiff,   and   to   his  said   title  and   pos- 
session. 

Wherefore  plaintiff  prays  that  he  may  he  adjudged  the  owner  in  fee 
simple  of  said  real  estate,  free  from  all  claims  of  an  estate  or  interest 
therein  of  said  defendant,  by  reason  of  the  premises,  for  costs  and  for 
all    relief    to    which,    upon    the    facts   of    the   case,    he    may   be   entitled    in 

law  or  equity.  . 

Attorneys  for  Plaintiff. 

(This  petition   should  be  verified.) 

No.  435.     Another  form  for  judgment  and  decree  of  court  in 
the  action  to  quiet  title. 

(Same  caption  as  in  the  petition.) 

This  day  came  the  said  parties  by  their  respective  attorneys,  and  there- 
upon this  cause  came  on  to  he  heard  by  the  court  upon  the  pleadings  and 
the  evidence  adduced  by  the  parties  respectively,  and  was  argued  by 
counsel;  and  upon  consideration  thereof  and  on  being  fully  advised  in 
the  premises,  the  court  does  find  the  plaintiff'  is  entitled  to  the  relief  as 
prayed  for  in  his  petition. 

It  is  therefore  ordered,  adjudged  and  decreed  by  the  court,  that  said 
plaintiff',  in  his  said  title  to  and  possession  of  said  premises,  be  and  he 
is  hereby  forever  quieted,  as  against  the  said  claims  of  the  said  defendant 
of  said  estate  and  interest  in  said  real  property  described  in  the  petition 
herein  adverse  to  him;  and  also  that  the  plaintiff  recover  against  said 
defendant  his  costs  in  this  behalf  expended,  taxed  to  be  $ . 

[Note:  Both  the  foregoing  forms  adapted  from  Yaple's  Code  Plead- 
ings.     Subject:     Action   to    Quiet   Title.] 


CHAPTER    XIX. 

THE  LAW  AND  FORMS  IN  THE  ACTION  TO  RECOVER 
POSSESSION   OF   REAL   ESTATE— THE    OCCUPYING 

CLAIMANTS'  LAW. 


SECTION. 

579.  The   nature   of   the   action   to 

recover  possession  of  real 
estate. 

580.  Petition  in  the  action  for  pos- 

session  of  real  estate. 
5S1.     Petition  by  tenant  in  common 
against   a   co-tenant. 

582.  Answer     to     the     petition     in 

ejectment. 

583.  The   recovery  when  right   ter- 

minates  during   the   action. 

584.  Who  may  maintain  the  action. 

585.  Plaintiff's  title. 

58G.  The  proof  of  title  required  in 
the  action. 

587.  Neither  party  will  be  permit- 
ted to  contest  a  prior  deed, 
when. 

58S.  Adverse  possession  and  the 
statute  of  limitation-. 

589.  The  relief  that  may  be  ob- 
tained in  the  action. 

500.  The  causes  of  action  that  may 

be  joined  in  the  suit  to  re- 
cover possession  of  real 
estate. 

501.  The  action  triable  to  a  jury. 

502.  In  the  action  for  the  recovery 

of  the  purchase  money. 
vendee  may  recoup  for  the 


SECTION. 

amount    of    liens    and    en- 
cumbrances, when. 
593.     Parties    may    have    benefit    of 
occupying    claimant's    law, 
when. 

504.  In      what      cases      occupying 

claimant  to  be  paid  for  im- 
provements. 

505.  Title  under  sale  for  taxes  suf- 

ficient to  protect  occupant. 
50G.     Entry   of   claim   for   improve- 
ments. 

507.  Regular    jury    to    act — Duties 

of  jury. 

508.  Sheriff    to    summon    talesmen, 

when. 

500.  Setting  verdict  aside — Chal- 
lenge— Cost-,  if  too  many 
witnesses  called. 

600.  Judgment  and  execution  on 
verdict   for  plaintiff. 

GUI.  Proceedings  if  verdict  is  for 
occupying   claimant. 

602.  A   writ   of   possession   will    is- 

sue, when. 

603.  When    claimant    elects    to    re- 

ceive value  of  the  land. 

604.  When   occupant   may   have  an 

action  for  the  title. 


Sec.  579.     The  nature  of  the  action  to  recover  possession  of 
real  estate. 

Much  of  the  law  of  ejectment  in  this  State  has  become  obso- 
lete,  and    consequently   of   no    great   use    t<>   the    practitioner, 
except  that  some  knowledge  of  the  same  is  necessary  to  a  com- 
plete understanding-  of  some  of  the  terms  used  in  the  present 
685 


§  579  MERWINE   ON    REAL    ACTIONS.  686 

law.     We  here  give  a  ioncise  statement  of  the  old  procedure 
to  get  possession  of  real  estate.     It  is  from  the  pen  of  an  able 
jurist  who  practiced  in  this  State  before  the  adoption  of  the 
code:  "The  old  English  real  action  was  so  intricate  that  eject- 
ment, an  action  by  which  a  dispossessed  tenant  recovered  his 
possession  for  the  term  of  his  lease   against  the  ejector,  was 
made   to   subserve    its   purpose;    but    the   actual   making   of   a 
lease,   putting  the   lessee   in  possession   by   the  lessor  and   the 
occupant   ejecting   him  by  retaining  possession,   proved  to  be 
too  formal   and   troublesome.     During  the  Protectorate,  Lord 
Chief   Justice    Rolle,    by    fictions    of    law,    obviated    these    diffi- 
culties.    It  was  assumed  that  the  claimant  of  the  land  in  dis- 
pute had  made  a   lease   of  the  premises  to  a  fictitious  lessee, 
usually  named  John   Doe — the  term   being  stated   for  such  a 
number  of  years  as  not   to  expire  during  the  litigation — and 
put  the  lessee.  John  Doe.  in  possession,  when  another  fictitious 
personage,   named  commonly   Richard   Roe,   called  the   casual 
ejector,  entered  upon  the  premises  and  ousted  John  Doe  from 
the  possession,  to  recover  which,  for  such  term,  from  Richard 
Roe.  John  Doe,  on   the    demise  of  the  claimant,  brought  the; 
action.      The   lands    were   not   specifically    described    as    is   re- 
quired by  our  code.     A  stream  of  water  could  not  be  declared 
for.  but  was  described  as  land  covered  by  water.     Notice  of 
the  action  was  served  upon  the  person  found  in  possession  of 
the  land;  and  if  a  tenant,  he  could  notify  his  landlord,  and 
either  could  defend  as  tenant  in  possession.     But  as  the  plain- 
tiff never  proved  the  lease  to  John  Doe,  the  entry    and  ouster 
by  Richard  Roe,  the  tenant  in  possession,  to  be  let  in  to  defend, 
was   obliged    to    enter   into    the   'consent   rule."   by    which    he 
admitted    such    fictitious  lease,    entry,    and   ouster,   which    left 
for  trial  only  the  question  who  was  entitled  to  the  possession. 
The   Legal   title,   as  contradistinguished   from   the   equity   title, 
drew  to  itself  the  legal  right  to  possession,  and  hence  the  legal 
title,   and    the   legal    title   only,   could   be   tried    in    such    action. 
The  plaintiff,  as  now.  had  to  recover  upon  the  strength  of  his 
title,  nol   on  the  weakness  of  the  title  of  the  defendant.     Out- 
standing   legal    title    in    a    third    person    was    a    good    defense. 
After   recovery   of   possession    by   judgmenl    in   ejectment,   the 
rc;\]  or  nominal  plaintiff  could  sue  the  real  defendant  in  tres- 
pass to  recover  mesne  profits,  and  for  waste,  which  were,  by 


687 


THE   ACTION    IN    EJECTMENT. 


§580 


our  statute  of  limitations,  recoverable  for  four  years  prior  to 
the  bringing  of  the  action."1 

Before  the  adoption  of  the  code,  ejectment  was  the  action 
to  get  possession  of  real  estate  under  all  circumstances.  This 
was  so  since  the  organization  of  the  State.  It  could  be  sus- 
tained in  all  cases  in  which  the  writ  of  right  could  have  been 
sustained  at  common  law.2 

Now  the  code  regulates  the  action,  and  while  the  action 
is  to  recover  possession  of  real  estate,  and  while,  in  reality, 
there  is  no  legal  name  for  the  action,  it  is  usually  called  the 
action  of  ejectment.3 

Sec.  580.     Petition  in  the  action  for  possession  of  real  estate. 

In  an  action  for  the  recovery  of  real  property,  it  is  suffi- 
cient if  the  plaintiff  state  in  his  petition  that  he  has  a  legal 
estate  therein,  and  is  entitled  to  the  possession  thereof,  describ- 
ing the  same  as  required  by  Gen'l  Code,  §  11344  (R.  S.  §  5095), 
and  that  the  defendant  unlawfully  keeps  him  out  of  the  posses- 
sion ;  and  it  is  not  necessary  to  state  how  the  plaintiff's 
estate  or  ownership  is  derived.4 

In  an  action  to  recover  real  estate,  the  property  must  be 
described  with  such  certainty  as  will  enable  an  officer  holding 
an  execution  to  identify  it.5 

It  has  been  questioned  whether  an  action  of  ejectment  may 
be  maintained  by  the  owner  of  a  legal  title,  as  against  a  de- 
fendant in  possession  by  virtue  of  a  land  contract.  However, 
a  petition  in  such  case  which  does  not  aver  that  plaintiff  has 
complied  with  the  terms  of  the  contract  on  his  part  is  defective.0 

It  is  not  necessary  to  allege  in  the  petition  what  plaintiff's 


i  2  Yaple's  Code  Practice  &  Prece- 
dents. 74!i.  As  to  possession  before 
the  code,  see  Ludlow  v.  McBride,  3 
0.  240:  Ludlow  v.  Barr,  3  O.  388; 
Devacht  v.  Newsome,  3  O.  57: 
Abram  v.  Will,  6  O.  164;  Dresbach 
v.  McArthur,  7  0.  (pt.)  146;  Win- 
throp  v.  Grimes,  W.  330;  Boal  v. 
King,  \V.  223:  Barton  v.  Norris,  15 
O.  408. 

2  Lessee  v.  Hemphill.  3  0.  240. 

3  1  Bates  Pleading  Parties  and 
Forms,    425.      "The    code    action    is 


one  rather  in  the  nature  of  eject- 
ment than  ejectment  proper.  Its 
code  name  is  action  to  recover  real 
estate,  though  more  commonly  called 
in  digests,  indexes,  and  reports, 
ejectment."     Ibid. 

•♦Gen'l  Code.  §  11003  (P.  S. 
§5781).  Se<-  No.  430  for  form  for 
the  petition.  See  Xo.  437  form  of 
answer  containing  a  general  denial. 

5  Gen'l  Code,  §11344  (R.  S. 
§  5005 ) . 

e  Zoeter   v.   Lamson,   2   Cleve.    10. 


§§581,582  MERWtNE    ON    REAL    ACTIONS.  688 

tide  is.     It  is  sufficient,  if  it  alleges  that  he  has  a  legal  estate 
in  the  real  estate  described  in  the  petition.7 

It  was  held  that  a  failure  to  make  an  averment  in  a  petition 
in  ejectment,  that  the  defendant  unlawfully  keeps  plaintiff 
out  of  the  possession  since  a  certain  date,  is  not  fatal  where  no 
objection  was  taken  to  the  petition  by  motion  or  otherwise, 
until  after  verdict  and  judgment  for  the  defendant,  and8  that 
a  petition  in  ejectment  was  in  proper  form  ;  and  not  showing 
that  it  was  apparently  barred  by  the  statute  of  limitations,  it 
was  not  necessary  for  plaintiff  to  make  averments  therein  to 
bring  himself  within  any  of  the  exceptions  contained  in  the 
statute.9 

Sec  581.     Petition  by  tenant  in  common  against  co-tenant. 

In  an  action  by  a  tenant  in  common  of  real  property  against 
a  co-tenant,  the  plaintiff  must  state,  in  addition  to  what  is 
required  in  Gen'l  Code,  §  11903  (R.  S.  §  5781),  that  the  defend- 
ant either  denied  the  plaintiff's  right,  or  did  some  act  amount- 
ing to  such  denial.10 

Sec.  582.     Answer  to  petition  in  the  action  of  ejectment. 

It  will  be  sufficient,  in  such  action,  if  the  defendant,  in  his 
answer,  deny  generally  the  title  alleged  in  the  petition,  or  that 
he  withholds  the  possession;  but  if  he  deny  the  title  of  th-3 
plaintiff,  possession  by  the  defendant  will  be  taken  as  admitted, 
and  when  he  does  not  defend  for  the  whole  premises,  the 
answer  must  describe  the  particular  part  for  which  defense  i> 
made,  and  the  defendant  may  further  set  forth  in  his  answer 
such  other  and  further  grounds  of  defense,  counterclaim  and 
set-off.  as  he  has  <>r  might  have  in  any  other  form  of  action, 
whether  they  arc  such  as  have  heretofore  been  denominate  I 
legal  or  equitable,  or  both.11 

The  general  denial,  il  seems,  is  sufficient  to  raise  almost  any 
defense  ,it  the  trial.     Where  the  answer  denies  the  title  alleged 

rScallan  v.   Peslet,  2  C.  S.  C.   R.  ■'  Forest  v.  Jelke    7   C.   C.  23. 

156;  Smith  v.  Findlay,  2  Handy  70;  io  Gen"!     Code,     §11905      (R.     S. 

McKinney  v.  McKinney,  8  O.  S.  423 ;  §5783).     Winthrop   v.    Grimes,   W. 

Smith     v.     Handy,    6!)';     Bliss    Code  330;    Penrod  v.  Danner,   10  O.  221; 

Pleading,    §23.  White  v.  Sayre,  2  <  >.  111. 

sMiddleton  v.  Westenny,  7  C.  C.  « Gen'l     Code,     §11904     (R.     S. 

303.  §5782). 


689  THE    ACTION    IN    EJECTMENT.  §  §  583,  584 

in  the  petition,  other  defenses  in  the  answer  setting  up  title 
in  the  defendant  have  been  held  immaterial.12 

It  is  not  necessary  for  a  defendant  relying  on  the  statute  of 
limitation,  to  specially  set  up  the  statute  in  answer.13  An 
answer  denying  that  plaintiff  has  a  legal  estate  in,  or  is  entitled 
to  the  possession  of  the  real  estate,  or  that  defendant  unlaw- 
fully keeps  him  out  of  the  possession,  will  be  regarded  merely 
a  denial  of  legal  title  in  plaintiff.14  Where  plaintiff  has  the 
legal  title,  a  defense  grounded  on  an  equitable  title  and  right 
of  possession  under  it  in  the  defendant  must  be  pleaded.13 

Sec.   583.     The   recovery  when   right  terminates   during  the 
action. 

In  an  action  for  the  recovery  of  real  property,  when  the 
plaintiff  shows  a  right  to  recover  at  the  time  the  action  was 
commenced,  but  his  right  has  terminated  during  the  pendency 
of  the  action,  the  verdict  and  judgment  must  be  according  to 
the  fact,  and  the  plaintiff  may  recover  for  withholding  the 
property.16 

Sec.  584.     Who  may  maintain  the  action. 

The  possession  of  real  estate  may  be  obtained  by  one  who 
recovers  a  judgment  for  breach  of  promise,  and  purchases  the 
real  estate  of  the  judgment  debtor  who,  pending  the  proceed- 
ings, fraudulently  conveyed  the  same  for  the  purpose  of  defeat- 
ing the  collection  of  the  judgment ; 17  by  an  heir  who  claims- 
under  a  will  probated  before  a  partition  of  real  estate  among 
the  heirs  who  had  conveyed  their  interest  to  another;18  by  a 
reversioner,  where  the  life  tenant  forfeits  the  same  for  non- 
payment of  taxes; 19  by  a  surviving  husband,  where  it  appears 
that  a  deceased  wife  at  the  time  of  her  death  owned  the  real 
estate  in  her  own  right,  and  no  state  of  facts  existing,  barring 

12  Rhodes  v.  Gunn.  35  0.  S.  387;  "  McVeigh  v.  Ritenour,  40  0.  S. 

Kyser  v.  Cannon,  29  0.  S.  359.  107.      Plaintiff   claiming   by   a    pur- 

is  Winter  mute  v.  Montgomery,  11  chaser  at  sheriff's  sale  is  required  to 

0.   S.  444.  prove  the  judgment,  the  execution, 

14  Bothe  v.  Railway.  37  0.  S.  147;  levy    and    sale.       Bank    v.    White, 

but  see  Darling  v.  Hippie,  12  0.  C.  Wright.  51. 

D.  754.  is  Woodbridge   v.   Banning.    14   0. 

is  Powers  v.  Armstrong,  36  0.  S.  S.  328. 

357.  J9  McMillan  v.  Robbing,  5  0.  28. 

isGen'l     Code,     §11906     (R.     S. 
§5784). 


§  584  MERWINE    ON    REAL    ACTIONS.  690 

the  husband's  right  of  curtesy  therein,  and  the  land  being 
in  the  possession  of  another; 20  by  a  grantor  who  has  conveyed 
real  estate  to  a  grantee  upon  condition  that  a  grist  mil  and  saw- 
mill shall  be  erected  and  maintained  on  the  premises,  the  gran- 
tee failing  to  perform  and  remaining  in  possession ;  -'  by  a 
mortgagee  from  a  mortgagor  in  possession,  the  mortgage  having 
become  due  by  condition  broken;  "2  by  a  grantee  from  a  gran  - 
or,  the  deed  having  been  delivered  and  the  grantor  is  in  pos- 
session, -efusing  to  admit  the  grantee  into  possession  ;  -3  by  a 
vendor  from  a  vendee  in  possession  before  a  conveyance,  the 
vendee  being  clearly  in  default;24  by  a  lawful  trustee  against 
persons  in  possession  claiming  to  be  trustees; 25  by  a  mortgagee 
upon  a  mortgage,  the  real  consideration  for  which  being  an 
agreement  not  to  prosecute  the  son  of  the  defendant  for  a 
theft;26  by  a  landlord  to  recover  possession  of  leased  premises, 
upon  a  forfeiture  of  the  lease  for  non-payment  of  rent,  and  27  by 
the  real  owner  of  land  against  one  in  possession  under  defec- 
tive tax  title.28 

The  action  can  not  be  maintained  by  the  owner  of  land, 
who.  by  his  written  consent,  agreed  to  give  a  railroad  company 
the  perpetual  right  of  way  through  the  same  for  a  sum  paid 
to  him,  with  a  provision  in  the  contract,  that  the  company 
should  fence  the  same,  and  having  failed  to  construct  it;  29  by  a 
wife  against  a  third  person,  claiming  adverse  possession,  the 
husband  having  a  freehold  in  the  lands  wi'h  present  right  of 
exclusive  enjoyment,  but  which  has  been  lost  by  adverse  pos- 
session, the  wife's  reversion  being  postponed  until  the  termina- 
tion of  coverture;  and"0  by  a  mortgagee,  who  claims  under  a 
past  due  and  defectively  executed  mortgage,  the  certificate  of 
acknowledgment  not  showing  by  whom  the  instrument  was 
acknowledged/" 

20  Hall  v.  Hall,  32  0.  S.  184.  2c  Doe  v.  Roll,  7   0.    (pt.  2)    71; 

21  SjKTr;    v.  Pond.  5  0.  388.  Williams    v.    Englebright,    73    0.    S. 

22  Bradfield  v.  Hale.  67  <>.  S.  317.       383. 

affirming  21  ('.  ('.  184.    See  also  Ely  27  Adams  v.  Parnell,  11  C.  C.  567. 

v.  McGuire,  2  0.  223.  •    Wallace  v.  Dayton,  Dayton,  410. 

23  Jones  v.  Tinimons.  21  0.  R.  50fi.  20  Hornback  v.  Cincinnati,  etc.,  20 
24Coggahall  v.  Marino  Bank,  63  O  O.  S.  81. 

S.  88.  3<>  Thompson  v.  Green,  4  O.  S.  217. 

25  Harper  v.  Crawford,   13  O.   13;  31  Smith  v.  Hunt,  13  0.  260. 

Monre  v.  Burnett,  11  0.  334. 


691 


THE    ACTION    IN    EJECTMENT. 


§§  585-587 


Sec.  585.     Plaintiff's  title. 

Plaintiff  must  recover  on  the  strength  of  his  own  title  and 
not  upon  the  weakness  of  that  of  his  adversary. 3- 

A  possessing  title  is  a  sufficient  title  as  against  a  mere  in- 
truder or  one  who  can  not  show  a  better  right.33  And  a  de- 
fendant in  possession  will  not  be  -disturbed  until  a  better  title 
is  shown.34 


Sec.  586.     The  proof  of  title  required  in  the  action. 

In  an  action  for  recovery  -of  possession  of  land  from  a 
defendant  claiming  title  by  adverse  possession,  the  plaintiff 
is  required  to  show  his  claim  of  title  to  the  land  in  dispute 
by  a  chain  of  conveyances  from  the  government,  or  from  a 
grantor  proved  to  have  been  in  possession  of  the  land  in  dis- 
pute when  he  executed  the  conveyance  therefor.35 

It  has  been  said  that  "a  prima  facie  case  is  made  by  showing 
a  conveyance  to  plaintiff  -or  one  of  his  grantors  in  the  chain 
of  title,  by  one  then  in  possession  and  occupancy  of  the  land. 
If  this  is  not  done,  he  must  run  his  title  by  deed  or  other 
necessary  proof,  to  some  one  shown  or  admitted  to  be  the 
common  source  of  title  to  him  and  the  defendant  and  in  default 
of  there  being  such  common  source  of  title,  back  to  the  govern- 
ment."36 

Sec.  587.     Neither  party  to  the  action  will  be  permitted  to  con- 
test a  prior  deed,  when. 

In  an  action  to  recover  possession  of  real  estate  which  is 
claimed   by   both   parties  by   a   title   coming  from   a  common 


32  McArthur  v.  Gallagher,  8  0. 
512:  Waite  v.  Feist,  etc.,  6  X.  P. 
434:  Seallon  v.  Porter,  156;  Middle- 
ton  v.  Westenney,  7  C.  C.  393; 
Boomeishine  v.  Stucklayer,  Dayton, 
38. 

33  Davacht  v.  Newson,  3  0.  57; 
Ludlow  v.  Parr.  3  O.  388;  Mudlow 
v.  McBride,  3  0.  '240;  Abram  v. 
Will.  6  O.  164;  Dresbach  v.  McAr- 
thur. 7  O.  (pt.  1st)  14fl;  Winthrop 
v.  Grimes  W.  330. 

34  Woods  v.  Prudell  W.  507. 

3.->  Heller  v.  Hawley,  8  C.  C.  N.  S. 
265. 


36  Middleton  v.  Westenney.  7  C.  C. 
208;  Blake  v.  Davis,  20  *  0.  239; 
Hart  v.  Johnson,  6  0.  87 ;  Newell  on 
Ejectment,  585;  Cunningham  v. 
Harper,  W.  366.  Deed  to  plaintiff 
in  wrong  name,  by  proof  that  he  is 
person  named  therein  is  competent. 
Starr  v.  Wright,  20  0.  S.  99.  Title 
may  be  made  through  a  last  unre- 
corded deed.  Blackburn  v.  Black- 
burn, 8  0.  81.  Where  both  parties 
claim  from  grantors  by  same  name, 
parol  proof  may  be  given  as  to 
which  grantor  had  the  right  to  con- 
vey.   Avery  v.  Stites,  W.  56. 


§§  588-590 


MERWINE    ON    REAL    ACTIONS. 


692 


source,  neither  party  will  be   at  liberty  to  contest  the  deed 
from  which  both  claim.37 

Sec.  588.     Adverse  possession  and  the  statute  of  limitations. 

The  adverse  possession,  to  be  a  defense  to  the  action  of  one 
who  otherwise  would  be  entitled  to  the  possession,  must  be 
actual,  open,  exclusive  and  continuous  for  twenty-one  years 
prior  to  the  commencement  of  the  action.  The  claim  to  the  land 
must  have  been  held  by  the  one  in  possession  in  his  own  right 
and  adverse  to  the  whole  world,  and  his  attitude  must  have 
been  that  of  one  proclaiming  to  all  the  world  that  the  land 
is  his.38 

Sec.  589.     The  relief  which  may  be  obtained  in  the  action. 

Plaintiff  may  ask  and  obtain  possession  of  the  real  estate, 
damages  for  the  rents  and  use  of  the  same,  an  injunction  from 
committing  irreparable  damage  to  be  done  to  the  real  estate  by 
an  insolvent  defendant.39 

Sec.  590.     The  causes  of  action  that  may  be  joined  in  the  suit 
to  recover  possession  of  real  estate. 

The  code  allows  claims  to  recover  real  property,  with  or 
without  damages  for  the  withholding  thereof,  the  rents  and 
profits  of  the  same,  and  the  partition  thereof  to  be  joined  in 
one  action.40  But  the  causes  of  action  so  united  must  not  re- 
quire different  places  of  trial,  and  except  as  otherwise  provided 
must  affect  all  of  the  parties  to  the  action.41 


37  Doe  v.  Dugan,  8  0.  100;  Doug- 
lass v.  Scott,  5  O.  104;  Ward  v. 
Mcintosh,  12  0.  S.  231;  Presbyte- 
rian v.  Pickett,  W.  57;  Longworth 
v.  Wolfinger,  W.  216;  Devacht  v. 
Newsome,  3  0.  57;  Hart  v.  John- 
son. 6  0.  s7:  Bothe  v.  Railway,  37 
0.   S.   147. 

38  McAllister  v.  Hartzell,  00  0.  S. 
83:  Herbert  v.  Bates,  13  W.  L.  B. 
565;  Fowler  v.  Whitehead,  2  0.  S. 
271:  Barton  v.  Morris,  15  O.  408; 
Forest  v.  Jelke,  7  C.  C.  25:  Robin- 
son v.  Fife.  3  0.  S.  551;  Darling  v. 
Hippie,  12  0.  C.  D.  734;  affirmed  in 
60  0.  S.  .-,!ii  :  McNiely  v.  Langan, 
22  0.  S.  32;  Avery  v.  Baum,  W. 
576;  Hubst  v.  Bates.  13  W.  L.  B. 
565:    Williams   v.    Burnett.   W.   53; 


Thompson  v.  Green,  4  0.  S.  223; 
Stockwell  v.  Coleman,  10  0.  S. 
35;  Brodtield  v.  Hale,  67  0.  S. 
307;  Ries  V.  Wolf,  18  C.  C.  352; 
Forest  v.  Jelke,  7  C.  C.  23 ;  Winter- 
mute  v.  Montgomery,  11  0.  S.  442; 
Haymaker  v.  Haymaker,  4  0.  S. 
272:  Ford  v.  Laugel,  4  0.  S.  464; 
State  v.  Ry..  1  N.  5202:  Moore  v. 
Armstrong,  10  0.  11;  Whitney  v. 
Webb,  10  O.  513:  Bobo  v.  Richmond, 
25  O.  S.  115. 

39  Raymond  v.  Railway,  57   0.   S. 
282. 


40  CJen'l 

Code, 

§  11306 

(R. 

S 

g  5058). 

«  Gen'l 

Code, 

§  11307 

(R. 

s 

§5059). 

693  THE    ACTION    IN    EJECTMENT.  §§591,592 

In  the  action  there  can  he  united  the  cause  of  action  for  the 
possession  of  the  real  estate,  and  a  cause  of  action  for  the 
cancellation  of  conveyances  made  by  plaintiff  without  consid- 
eration on  an  agreement  not  carried  out  by  the  defendant. 

Sec.  591.    The  action  triable  to  a  jury. 

The  action  by  statutory  requirement  is  tried  to  a  jury.  The 
issues  of  fact  arising  for  the  recovery  of  specific  real  property 
shall  be  tried  to  a  jury,  unless  a  jury  trial  be  waived,  or  a 
reference  be  ordered.42 

No  right  of  appeal  exists  and  the  fact  that  a  jury  is  waived 
by  the  parties  and  the  case  tried  by  the  court  does  not  alter 
the  rule.  The  action  must  be  tried  by  a  jury,  if  the  principal 
relief  sought  is  the  recovery  of  the  possession  of  real  estate, 
and  in  the  action  an  injunction  is  asked  and  one  of  the  objects 
of  the  petition  is  to  prevent  a  multiplicity  of  suits,  and  another, 
to  establish  a  disputed  boundary  line.43 

Sec.  592.  In  an  action  for  the  recovery  of  purchase  money 
vendee  may  recoup  amount  of  liens  and  incumbrances, 
when. 

In  actions  for  the  recovery  of  purchase  money  of  real  estate, 
by  vendor  against  vendee,  it  is  competent  for  such  vendee, 
notwithstanding  his  continued  possession,  to  set  up,  by  way  of 
counterclaim,  any  breach  of  the  covenants  of  title  acquired  by 
him  from  the  plaintiff,  and  to  make  any  person  claiming  an 
adverse  estate  or  interest  therein,  party  to  the  action ;  and  upon 
the  hearing  he  will  be  entitled  to  recoup  against  the  plaintiff's 
demand,  the  present  worth  of  any  existing  lien  or  incumbrance 
thereon;  and  if  the  adverse  estate  or  interest  of  the  claimant 
is  an  estate  in  reversion  or  remainder,  or  contingent  upon  a 
future  event,  the  court  may  order  the  vendee,  with  his  assent, 
to  surrender  the  possession  to  his  vendor  upon  the  repayment 
of  so  much  of  the  purchase  money  as  has  been  paid  thereon, 
with  interest,  or  direct  the  payment  of  the  purchase  money 
claimed  "in  the  action,  upon  the  plaintiff  giving  bond  in  double 
the  amount  thereof,  with  two  or  more  sureties,  to  be  approved 
by  the  court,  for  the  payment  of  the  same,  with  interest,  if  the 

*2Gen'l     Code,     §11370     (R.     S.  « Raymond  v.  Railway,  57  0.  S. 

§5130).     Raymond  v.  Railroad,  57       280. 
O.  S.  280. 


§§  593,  594  MERWINK    ON    KEAL,    ACTIONS.  694 

defendant  or  his  privies  be  subsequently  evicted  by  reason  of 
the  defect.44 

Sec.  593.     Parties  may  have  benefit  of  occupying  claimant  law, 

when. 
Parties  in  an  action  for  the  recovery  of  real  property  may 
avail  themselves,  if  entitled  thereto,  of  the  benefit  of  the  stat- 
utes for  the  relief  of  occupying  claimants  of  land. 

Sec.  594.  In  what  cases  occupying  claimant  to  be  paid  for  im- 
provements. 
A  person  in  the  quiet  possession  of  lands  or  tenements,  and 
claiming  to  own  the  same,  who  has  obtained  title  to,  and  is  in 
possession  of  the  same  without  fraud  or  collusion  on  his  part, 
cannot  be  evicted  or  turned  out  of  possession  by  any  person 
who  sets  up  and  proves  an  adverse  and  better  title,  until  the 
occupying  claimant,  or  his  heirs,  are  fully  paid  the  value  of  all 
lasting  and  valuable  improvements  made  on  the  land  by  him,  or 
by  the  person  under  whom  he  holds,  previous  to  receiving 
actual  notice,  by  the  commencement  of  suit  on  such  adverse 
claim  whereby  such  eviction  may  be  effected,  unless  such  occu- 
pying claimant  refuse  to  pay  to  the  person  so  setting  up  and 
proving  an  adverse  and  better  title  the  value  of  the  land,  with- 
out improvements  made  thereon  as  aforesaid,  upon  demand 
of  the  successful  claimant,  or  his  heirs,  as  hereinafter  provided, 
when — 

1.  Such  occupying  tenant  holds  a  plain  and  connected  title, 
in  law  or  equity,  derived  from  the  records  of  a  public  office;  or, 

2.  Holds  the  same  by  deed,  devise,  descent,  contract,  bond 
or  agreement,  from  and  under  a  person  claiming  title  as  afore- 
said, derived  from  the  records  of  a  public  office,  or  by  deed 
duly  authenticated  and  recorded;  or, 

3.  Under  sale  on  execution,  against  a  person  claiming  title 
as  aforesaid,  derived  from  the  records  of  a  public  office,  or  by 
deed  duly  authenticated  and  recorded;  or. 

4.  Under  a  sale  for  taxes  authorized  by  the  laws  of  this 
State,  or  the  laws  of  the  territory  northwest  of  the  river 
Ohio ;  or, 

5.  Under  a  sale  and  eonveyance  made  by  executors,  admin- 

"Genl     ('<»(].-.     §11902      (R,     S.  §5780). 


695 


THE   OCCUPYING    CLAIMANTS      LAW. 


§594 


istrators  or  guardians,  or  by  any  other  person  or  persons,  m 
pursuance  of  an  order  of  court,  or  decree  in  chancery,  where 
lands  are  or  have  been  directed  to  be  sold.45 

This  statute  for  the  relief  of  occupying-  claimants  operates 
only  in  cases  where  the  defendant  in  cpiestion  has  befen  evicted 
by  a  title  both  paramount  and  adverse.  Where  a  person  in 
the  quiet  possession  of  land  under  an  agreement  for  its  pur- 
chase, made  with  the  equitable  owner,  is  evicted  by  the  trustees 
holding:  the  legal  title,  he  is  not  entitled  under  the  statutes  to 
compensation  for  lasting  and  valuable  improvements  made  upon 
the  premises,  his  possession, 'in  such  case,  not  being  under  an 
adverse  title  within  the  meaning  of  the  statutes.4'1 

Mere  notice  of  a  defect  in  the  title,  or  any  claim  successfully 
asserted,  is,  of  itself,  not  sufficient  to  prevent  the  occupant  from 
asserting  his  right  to  valuable  and  lasting  improvements  made 
on  the  property.  In  such  case  he  must  have  purchased  in  good 
faith  and  made  the  improvements  under  the  honest  belief  that 
the  land  was  his  own.47 

If  a  court  awards  partition  among  heirs,  and  the  occupying 
claimant  is  in  possessiozi  of  the  land  whereon  he  has  made 
valuable  and  lasting  improvements,  a  court  will  not  enjoin  the 
proceedings  in  partition  for  the  reason  that  if  the  heirs  bring 
their  action  to  get  possession,  the  party  in  possession  can  then 
claim  relief  under  the  statute.48 

The  claimant  can  recover  for  improvements  made  by  himself, 
or  the  person  under  whom  he  claims,  before  his  title  com- 
menced, as  well  ns  for  those  made  afterwards.49 

The  statute  was  intended  for  those  who  act  in  good  faith,  and 
consequently  a  tenant  for  life,  obtaining  his  title  and  possession 
with  full  knowledge  of  the  quantity  of  his  estate,  can  not>  as 


*5Gen'l  Code.  §11908  (R.  S. 
§5780).  See  No.  439  and  follow- 
ing for  forms  and  procedure. 

*«  Preston  v.  Brown,  35  O.  S.  IS. 

47  Harrison  v.  Carter,  11  O.  S. 
339;  Beardsley  v.  Chapman,  1  O.  S. 
119. 

*«  Penrod  v.  Danner,  19  0.  218. 
The  office  of  township  trustees,  in 
which  the  leases  of  school  lands 
made  by  them  are  recorded  by  the 
clerk  cf  the  township,  is,  as  to  such 


leases,  a  public  office  within  the 
occupying  claimant's  law.  Hart  v. 
Johnson,  6  O.  540. 

49  Shaler  v.  Magni,  2  0.  235 ; 
Davis  v.  Powell,  13  O.  308.  But  not 
for  improvements  made  on  lands 
outside  of  his  title  deed.  Waldron 
v.  Woodcock,  15  O.  13.  Notice  of 
the  application  for  the  benefit  of 
this  law  must  be  given.  Patterson 
v.  Prother,   11   O.  35. 


§  §  595-597  MERWINE    ON    REAL    ACTIONS.  696 

against  a  reversioner  or  remainder-man,  claim  the  benefits  of 
the  statute.50 

A  purchaser  at  an  administrator's  sale  will  be  protected;51 
and  so  will  the  purchaser  in  possession  under  sheriff 's  sale,  if 
such  sale  is  void,  as  against  an  earlier  lien.52 

The  relief  can  not  be  claimed  under  the  statutes  Avhere  a 
vendee,  acting  under  a  mutual  mistake  in  his  deed  describing 
the  wrong  tract  of  real  estate,  enters  thereon  and  improves  it.33 


Sec.  595.     Title  under  a  sale   for   taxes  sufficient  to   protect 
occupant.  \ 

The  title  by  which  the  successful  claimant  succeeds  against 
the  occupying  claimant,  in  all  cases  of  lands  sold  for  taxes  by 
virtue  of  any  law  of  this  State,  or  the  laws  of  the  territory 
northwest  of  the  river  Ohio,  will  be  considered  an  adverse  and 
better  title,  under  the  provisions  of  the  last  section,  whether 
it  be  the  title  under  which  the  taxes  were  due,  and  for  which 
the  land  was  sold,  or  any  other  title  or  claim  ;  and  the  occupying 
claimant  holding  possession  of  land  so  sold  for  taxes,  having 
the  deed  of  a  collector  of  taxes  or  county  auditor  therefor,  or 
a  certificate  of  such  sale  from  a  collector  of  taxes  or  a  county 
treasurer,  or  claiming  under  the  person  who  holds  such  deed  or 
certificate  must  be  considered  as  having  sufficient  title  to  the 
land  to  demand  the  value  of  improvements  under  the  provisions 
of  the  last  section.54 

Sec.  596.     Entry  of  claim  for  improvements. 

The  court  rendering  judgment  against  the  occupying  claim- 
ant, in  any  case  provided  for  by  this  subdivision,  must  at 
the  request  of  either  party,  cause  a  journal  entry  thereof  to 
be  made ;  and  the  cause  must  then  proceed  as  in  other  civil 
cases.55 

Sec.  597.     Regular  jury  to  act — Duties  of  jury. 

For  the  trial  of  the  question  of  fact  remaining  undisposed 
of,  a  jury  is  required  to  be  impaneled  and  sworn  as  in  other 

soBeanlsloy  v.  Chapman,   1   0.  S.  52  Sellers  v.  Corwin,  5  0.  339. 

119;  Taylor  v.  Foster,  22  0.  S.  255.  53  Schroll  v.  Klinker,  15  0.  153. 

A    defendant,  not   in    possession   tin-  54  Gen'l     Code,     §11909      (R.     S. 

der  a  deed,  is  not  entitled  to  release.  §5787). 

Hart  v.  Blackington,  W.  386.  65  Gen'l     Code,     §11910     (R.     S. 

1  Longworth     v.     Wolfington,     0  §5788). 
0.  9. 


697  the  Occupying  claimants'  law.  §$598, 599 

civil  cases,  and  must  at  once  proceed  to  view  the  premises  in 
question,  and  after  viewing  the  same,  must  return  to  the  court 
house  and  then  and  there,  in  open  court,  the  trial  must  proceed 
as  in  other  civil  Cases,  and  the  rights  of  the  parties  must  be 
determined  by'the  jury  after  hearing  the  testimony  of  the  wit- 
nesses, which  may  be  produced  by  either  party,  under  the  di- 
rection of  the  court. 

And  from  said  view  and  testimony,  the  jury  is  required  to 
ascertain  and  find  in  their  verdict  the  reasonable  value  of  all 
permanent  and  valuable  improvements  made  on  the  land  pre- 
vious to  the  occupying  claimant  receiving  actual  notice  of  the 
adverse  claim  of  the  plaintiff,  and  also  the  damages,  if  any,  the 
land  has  sustained  by  waste,  including  the  value  of  timber  or 
other  valuable  material  removed  or  destroyed,  and  the  net 
annual  value,  rents  and  profits  of  the  land  accruing  after  the 
occupying  claimant  received  notice  of  the  claim  of  plaintiff's 
title  by  service  of  summons;  and  the  jury  must  also  find  the 
value  of  the  land  at  the  time  the  judgment  was  rendered  with 
the  improvements  thereon,  or  damages  sustained  by  waste,  in- 
cluding removal  or  destruction  of  the  timber  or  other  valuable 
material  and  must  return  their  verdict  in  open  court  as  in 
other  civil  cases.50 

Sec.  598.     Sheriff  to  summon  talesmen,  when. 

If  any  juror  named  in  the  order  is  absent  from  the  county, 
of  kin  to  either  party,  or  from  any  other  cause  disqualified  or 
unable  to  serve  upon  the  jury,  the  sheriff  may  summon  a  tales- 
man as  in  other  cases,  who  must  be  qualified  and  serve  as  if 
originally  drawn  and  named  in  the  order.57 

Sec.  599.  Setting  verdict  aside — Challenge — Costs,  if  too 
many  witnesses  called. 
If  either  party  be  aggrieved  by  any  such  assessment  or  valu- 
ation, he  may  apply  to  the  court  at  any  time  during  the  term 
at  which  the  trial  was  had,  by  a  motion  to  set  aside  the  verdict, 
assessment,  and  valuation,  and  the  court  may,  upon  good  cause 
shown,  set  aside  such  assessment,  valuation  and  verdict,  order 

seGen'l  Code,  §11911  (R.  S.  See  No.  442  for  certificate  of  oath 
§  578!) ) .      See   No.    440   for   form   of        of  jury. 

application    to    the    clerk   for   jury.  57  Gen'l     Code,     §11912      (R.     S. 

§5790). 


§§  600,  601  MERWINE   ON    REAL    ACTIONS.  698 

a  new  valuation  and  another  jury  to  be  drawn,  which  must 
proceed  in  like  manner,  as  hereinbefore  directed;  provided,  that 
in  all  cases  either  party  shall  have  the  right  to  challenge  jurors 
the  same  as  in  other  civil  actions;  and  provided  further,  that  if 
more  than  three  witnesses  be  examined  by  either  party  on  the 
same  point  in  the  same  case,  the  judge  may  tax  the  costs  of  such 
additional  witnesses  to  the  party  calling  them. 

And  the  provisions  herein  will  apply  to  all  actions  now  pend- 
ing as  well  as  those  hereafter  to  be  brought.58 

Sec.  600.     Judgment  and  execution  on  verdict  for  plaintiff. 

If  the  jury  report  a  sum  in  favor  of  the  plaintiff  in  ejectment, 
on  the  assessment  and  valuation  of  the  valuable  and  lasting 
improvements,  the  assessment  of  damages  for  waste,  and  the 
net  annual  value  of  the  rents  and  profits,  the  court  is  required 
to  render  a  judgment  therefor,  without  pleadings,  and  issue 
execution  thereon  as  in  other  cases;  or,  if  no  such  excess  be 
reported,  then,  and  in  either  case,  the  plaintiff  in  ejectment 
shall  be  thereby  barred  from  having  or  maintaining  an  action 
for  mesne  profits.59 

Sec.  601.     Proceedings  if  verdict  is  for  occupyirg  claimant. 

If  the  jury  report  a  sum  in  favor  of  the  occupying  claimant, 
on  the  assessment  and  valuation  of  the  valuable  and  lasting 
improvements,  deducting  therefrom  the  damages,  if  any,  sus- 
tained by  waste,  together  with  the  net  annual  value  of  the 
rents  and  profits  which  the  defendant  has  received  after 
commencement  of  the  action,  the  successful  claimant  or  his 
heirs,  or,  if  they  arc  minors,  their  guardians,  may  either 
demand  of  the  occupying  claimant  the  value  of  the  land 
without  the  improvements  so  assessed,  and  tender  a  deed  of 
the  land  to  the  occupying  claimant,  or  may  pay  the  occupying 
claimant  the  sum  so  allowed  by  the  jury  in  his  favor,  within 
such  reasonable  time  as  the  court  shall  allow.*9 

58  On'l     Cod*-.      §  1 1 «» 1 3      (  R.     S.  shoritV's    return    of    liis   writ    in    the 

§  57!)]  i.  action. 

59Gen'l     Code,     §11914      (R.     S.  ^  Gen'l     Code,     §11015      ( R.     S. 

§5702).     See   No.   443   for   form  of  §  570:j ) .    See  No.  446  for  form  where 

the    assessment    by    a    jury    for   im-  occupying    claimant   elects   to    keep 

provement    under    occupying    claim-  the  land, 
ant's  law.     See  No.  44  1  for  form  for 


699.  THE    OCCUPYING    CLAIMANTS'    LAW.  §§  602-604 

Sec.  602.     When  a  writ  of  possession  will  issue. 

If  the  successful  claimant,  his  heirs,  or  their  guardians, 
elect  to  pay,  and  do  pay  to  the  occupying  claimant,  the  sum 
reported  in  his  favor  by  the  jury,  within  the  time  allowed  by 
the  court,  then  a  writ  of  possession  shall  issue  in  favor  of  the 
successful   claimant,   his  heirs,   or  their  guardians.01 

Sec.  603.     When  claimant  elects  to  receive  value  of  land. 

If  the  successful  claimant,  his  heirs,  or  their  guardians, 
elect  to  receive  the  value  of  the  land  without  improvements, 
so  assessed  to  be  paid  by  the  occupying  claimant,  and  tender 
a  general  warranty  deed  of  the  land  conveying  such  adverse; 
or  better  title,  within  the  time  allowed  by  the  court  for  the 
payment  of  the  money,  and  the  occupying  claimant  refuse  or 
neglect  to  pay  the  same  to  the  successful  claimant,  his  heirs, 
or  their  guardians,  within  the  time  limited,  a  writ  of  possession 
shall  be  issued  in  favor  of  the  successful  claimant,  his  heirs, 
or  their  guardians.62 


&' 


Sec.  604.     When  occupant  may  have  action  for  title. 

The  occupying  claimant,  or  his  heirs,  shall  not  be  evicted 
from  the  possession  of  such  land,  exeept  as  is  provided  in  the 
two  preceding  sections,  where  an  application  is  made  for  the 
value  of  improvements ;  and  in  all  cases  where  the  occupying 
claimant,  or  his  heirs,  pay  into  the  court  the  value  of  the 
land,  without  improvements,  within  the  time  allowed  by  the 
court,  when  an  election  has  been  made  by  the  successful 
claimant,  his  heirs,  or  their  guardians,  to  surrender  land  under 
the  provisions  of  this  subdivision,  such  occupant  or  his  heirs 
may,  at  any  time  after  such  payment  is  made,  bring  an  action 
in  the  court  where  judgment  of  eviction  was  obtained,  and 
obtain  judgment  for  the  title  of  the  land,  if  the  same  h:id 
not  been  previously  conveyed  to  such  occupant  as  aforesaid.83 

eiGen'1     Code,     §1191(5      ( R.     S.  es  Gen'l     Code,     §11918      (R.     S. 

§5794).  §5796). 

,8->Gen'l     Code,     §11917      ( R.     S. 
§5795). 


FORMS. 


FORMS  IN  PROCEDURE  TO  RECOVER  POSSESSION  OF 
REAL  ESTATE   AND  THE   OCCUPYING  CLAIM- 
ANT'S LAW. 


FORMS. 

436.  The  petition  to  recover  pos- 
session of  real  estate. 

The  answer   of  defendant. 

The  verdict  of  the  jury. 

Judgment  on  the  verdict  and 
application  by  occupying 
claimant  for  valuation  of 
improvements. 

Application  to  the  clerk  for  a 
jury. 

The  writ  for  a  jury  directed 
by  the  clerk  to  the  sheriff. 

The  certificate  of  the  oath  of 
a  jury. 

The  assessment  by  a  jury  for 
improvements  under  occu- 
pying claimant's  law. 


437. 
438. 
439. 


440. 


441. 


442. 


443. 


FORMS. 

444.  The    sheriff's    return    of    his 

writ  in  an  action  for  relief 
under  t!.e  occupying  claim- 
ant's law. 

445.  The  oath   of   the  jury   in   the 

action. 

446.  The  order  and  judgment  when 

the  plaintiff  in  ejectment 
elects  to  pay  to  the  occu- 
pying claimant  for  lasting 
and  valuable  improvements 
and  to  keep  the  lands. 

447.  Another   form   for   a    petition 

in  the  action  to  recover  pos- 
session of  real  estate. 


No.  436.     The  petition  in  an  action  to  recover  possession  of 
real  estate. 

County,  Ohio. 


No- 


Court  of  Common  Pleas, 

H.  T.  C,  Plaintiff. 

vs. 
R.  B.,  Defendant. 

Petition. 

1.     First  Cause  of  Action. 

Plaintiff  has  a  legal  title  in,  and  is  entitled  to,  the  possession  of  the 
following  described   real    .state:       (Here   describe   it). 

Defendant    unlawfully    keeps    plaintiff    out    of    the    possession    thereo f 

and    lias   continued  to  do  so  from  the  day  of  ,  A.  D. 

]., ,    by    reason   whereof    plaintiff   has   been    damaged    in    the    sum    of 

$ . 

700 


701  •  FORMS. 

2.     Second  Cause  of  Action. 

Plaintiff  is  the  owner  of,  and  is  entitled  to,  tlie  possession  of  the 
following   described   real   estate:       (Here   describe   it). 

Defendant  unlawfully  keeps  plaintiff  out  of  the  possession  thereof,  and 

has  done  so  since  the  day  of  ,  A.  D.   19 ;   that  since 

said  date,  said  defendant  has  received  all  the  rents  and  profits'  of  said 
real  estate  continually  until  the  bringing  of  this  suit  and  is  still  receiving 
said  rents,  which  were  and  are  of  the  value  of  $ per  annum. 

Wherefore,  plaintiff  prays  for  a  judgment  of  the  possession  of  said 
real  estate  and  for  the  value  of  said  rents  and  profits. 


Attorney  for  Plaintiff. 
(Verified  as  in  other  actions.) 

No.  437.     The  answer  of  the  defendant. 

(Same  caption  as  in  the  petition.) 

Now  comes  the  defendant,  R.  B.,  and  denies  each  and  every  allegation 
in  said  petition  contained. 

Wherefore    he  prays  that  he  may  go  hence  without  day  and  that  he 

recover  his  costs  herein.  , 

Attorney  for  Defendant,  R.  B. 

(This  answer  should  be  verified.) 

No.  438.     The  verdict  of  the  jury. 

(Same  caption  as  in  the  petition.) 

We,  the  jury  in  this  action,  upon  the  issue  joined  between  the  parties 
do  find  in  favor  of  plaintiff,  as  charged  in  the  petition  as  to  the  real 
estate  therein  described,  and  assess  the  amount  of  plaintiff's  damages 
at  $ . 

No.  439.     Judgment  on  the  verdict,  and  application  by  occupy- 
ing claimant  for  valuation  of  improvements. 

(Same  caption  as  in  the  petition.) 

The  parties  this  day  came  before  the  court,  and  thereupon  came  a  jury, 
to-wit:  (Here  insert  names  of  jurors),  who,  being  impaneled  and  sworn 
the  truth  to  speak  upon  the  issues  joined  between  the  parties,  upon  their 
oaths  do  say  that  the  said  R.  B.  is  guilty  of  keeping  the  said  H.  T.  C. 
out  of  the  possession  of  the  real  estate  described  in  the  petition,  and  they 

assess  the  damage  of  the  said  H.  T.  C.  by  reason  thereof  at  $ ,  and 

the  value  of  the  rents  and  profits  of  said  premises  during  such  withholding 
of  the  premises  from  said  H.  T.   C.  by  said  R.  B.  at  $- . 

Therefore  it  is  ordered  that  the  said  H.  T.  C.  recover  a  judgment 
against  said  R.  B.  of  possession  of  said  tenements,  with  the  appurtenances, 
so  found  by  said  verdict  to  be  so  wrongly  in  the  possession  of  the  said 
R.  B.  and  also  the  sum  of  $ ,  his  said  damages  by  the  jurors  afore- 
said assessed,  together  with  his  costs  herein  expended,  taxed  at  $ . 


MERWINE   ON    REAL    ACTIONS.  702 

And  thereupon  the  said  R.  B.  by  his  attorney,  made  application  to 
the  court  for  the  valuation  of  improvements  and  assessment  of  damages, 
under  the  law  for  the  relief  of  occupying  claimants;  and  the  court  hav- 
ing investigated  the  matter  is  of  the  opinion  that  he  is  entitled  to  said 
application  for  relief.  It  is  ordered  by  the  court  that  further  proceedings 
may  be  had  in  lieu  thereto  agreeable  to  the  provisions  of  the  statutes 
made  and  provided  for  such  (applicants  for  relief  under  such  occupying 
claimant's  law. 

No.  440.     Application  to  the  clerk  for  a  jury. 

(Same  caption  as  in  the  petition.) 

To .  Clerk  of  the  Court  of  Common  Pleas,  and  ,  Sheriff 

of  —  County: 

You  are  hereby  required  forthwith  to  meet  and  draw  a  jury  in  the 
manner  required  by  law.  to  act  upon  the  application  of  R.  B.  in  the  above 
action  for  relief  under  the  occupying  claimant's  law  of  Ohio,  that  an 
order  may  issue  accordingly. 


No.  441.     The  writ  for  a  jury  directed  by  the  clerk  to  the 
sheriff. 

The  State  of  Ohio,  Cormty,  ss. : 

To  tJie  Sheriff  of  County,  Greeting: 

Whereas.  On  the day  of  ,  A.  D.  10 .  H.  T.  C, 

as  plaintiff,  recovered  a  judgment  against  R.  B.,  as  defendant  in  a  certain 
action    No.   — ■ —   lately    pending   in    our    Court   of    Common    Pleas,    within 

and  for  said  County  of  ,  for  the  possession  of  the  following  lands 

and  tenements,  with  the  appurtenances,  to-wit:  (Here  describe  the  real 
estate )  ;   and 

Whereas,  Upon  the  rendition  of  said  judgment,  our  said  Court  of 
Common  Pleas,  upon  the  application  for  that  purpose,  granted  to  the 
said  R.  B.,  the  benefits  of  the  statute  for  the  relief  of  occupying  claimants; 

We  Therefore  Command  You,  That,  without  delay,  by  the  oaths  of 
(insert  here  the  names  of  jurors),  and  upon  actual  view  of  the  premises, 
you  cause  to  be  made  a  just  and  true  assessment  of  the  value  of  all  lasting 
and  valuable  improvements  made  upon  the  lands  and  tenements  aforesaid 
by   the  said  R.   B.  or  by  any  person  or   persons  under  whom  the  said  R. 

!'..  holds  the  same,  previous  to  the day  of ,  A.  D.  , 

and  also  that  in  like  manner  you  cause  to  be  made  a  just  and  true  assess- 
ment of  the  damages,  if  any,  which  the  said  land-;  and  tenements  may 
have  sustained  by  damage,  together  with  the  net  annual  value  of  the 
rents  and  profits  which  the  said  R.  B.  may  have  received  from  same  from 

and    after    the    day    of    .    A.    1). .    deducting    the' 

amount  of  such  rents  and   profits  from  the  estimated   value  of  the  lasting' 
and  valuable  improvemer.ts  aforesaid-,   and  also  that   in  like  manner,  you 
cans.-  to  be  made  a   just  and  true  assessment  of  the  value  of  the  said  lands 


70S  FORMS. 

and  tenements  on  the  . day  of  ,    A.  D.   19 ,  exclusive 

of  the  improvements  made  thereon  and  damages  sustained  as  aforesaid, 
and  of  this  writ  make  legal  service  and  return  on  the  first  day  of  the 
next  term  of  our  said  Court  of  Common  Pleas. 

Witness:  .  Clerk  of  said  Court  of  Common  Pleas  at  

this day  of — -,  A.  D.  19 . 

No.  442.     The  certificate  of  jurors'  oath. 

(Same  caption  as  in  the  petition.) 

Be  it  Remembered,  That  on  the day  of ,  A.  D.  19 , 


before   me,  a  in   and   for  said  county,  personally   came   the  jury 

within  named,  and  before  proceeding  to  view  and  make  tlie  assessment 
therein  certified,  they  were  duly  sworn  by  me  to  make  a  true  and  just 
assessment  in  the  premises  upon  the  application  of  the  court  referred  to. 

In  Witness  Whereof,  I   have  hereunto  affixed  my  name  and  seal  of 
my  said  office.  ■ ■ 

Sworn  to  before  me  and  subscribed  in  my   presence  on   this 

day  of  ,   19 .  . 


No.  443.     The  assessment  by  jury  for  improvements  under 
occupying  claimant's  law. 

(Same  caption  as  in  the  petition.) 

We.  the  jury,  duly  impaneled  in  this  cause,  having  been  first  duly 
sworn,  upon  actual  view  of  the  premises  in  the  within  writ  described,  do 
make  an  assessment  of  the  value  of  all  lasting  and  valuable  improvements 

made  on  said  land  previous  to  the  day  of  .  A.  D.  19 , 

as  well  as  by  the  said  R.  B.  and  the  person  under  whom  the  said  R.  B. 
held  the  same,  which  are,  to-wit :  (Here  set  forth  particularly  the  im- 
provements and  their  value),  amounting  to  $— and  deducting  there- 
from   the   sum   of  $ .   being  the   amount   of   the   rents   and   profits   of 

said  land  estimated  by  us,  as  will  more  fully  appear  by  the  estimate  here 

returned,   leaving  the   sum   of   $ excess    in   favor   cf   said   occupying 

claimant. 

And  we   do  further  estimate   the   value  of   said  land   en    the 

day  of  ,  A.  D.  19 ,  at  $ ,  exclusive  of  fie  said  improve- 
ments and  damages  for  waste  herein  under  this  writ  by  us  •  stimated. 


Nc.   444.     The  sheriff's  return  of  his  writ  in  an  action  for 
relief  under  the  occupying  claimant's  law. 

Received  this  writ  on  the day  of  ,   19 .  at  


o'clock  m.     I  served  this  writ  upon  the  following  jurors  within  named: 

(Here  insert  the  names  of  jurors). 

And   thereupon   the    said   jury    so   made   out   and   impaneled   was   duly 


MERWINE    ON    REAL    ACTIONS.  704 

sworn  by  ,  a   in  and  for  said  county,  and  I,  with  the 

said  jury,   proceeded  to   and   did  execute   this  writ  as  will  appear  by  the 

certain  schedule  hereto  annexed.  . , 

Sheriff  of  County. 

No.  445.     The  oath  of  the  jury  in  such  action. 

You  and  each  of  you  do  solemnly  swear  in  the  presence  of  Almighty 
Gcd  that  you  will  upon  actual  view  of  tlie  lands  and  tenements  in  a  writ 

here    now    held    by    the    sheriff    of    County,    described,    well    and 

truly    assess   the    value    of   all    lasting   and   valuable    improvements   made 

upon  said  lands  previous  to  the  day  of  ,  19 ,  by  the 

said  R.  B.,  and  the  persons  under  whom  he  holds;  and  also  the  damages, 
if  any,  said  lands  have  sustained  by  waste  and  also  the  net  annual  value 
of  the   rents  and   profits  of  the   said  lands  which  the  said   R.   B.   may  or 

might    have    received    since   the   day    of   ,    19 :    also 

to  assess  the  value  of  said  lands  on  the  day  of  ,  1!) , 

without  such  lasting  and  valuable  improvements  or  damage  sustained  by 
waste,  and  in  all  things  perform  your  duties  as  jurors  according  to  the 
requirements  of  said  writ. 

No.  446.  The  order  and  the  judgment  when  the  plaintiff  in 
ejectment  elects  to  pay  to  the  occupying  claimant  for  the 
lasting  and  valuable  improvements  and  to  keep  the  lands. 

(Same  caption  as  in  the  petition.) 

This  cause  came  on  to  be  heard  by  the  parties  hereto,  and  the  jury 
having  made  return  of  their  assessments  and  valuation  in  the  premises, 
and  no  good  cause  being  shown  against  the  same,  on  motion  of  said  R. 
B.,   by   his   attorneys,   the   said  assessments   and   valuation   are   confirmed. 

And   the   aforesaid  jury   having  reported  the   sum  of  $ in  favor  of 

the  said  R.  B.  on  the  assessments  and  valuation  aforesaid,  after  deducting 
the  net  annual  profits  as  required  by  law,  the  said  H.  T.  C,  now  here  in 
court  elects  to  take  the  said  land  and  to  pay  the  said  R.  B.  said  sum 
of  $ ,  so  allowed  by  said  jury  in  favor  of  H.  T.  C. 

And    the   court    does   order   the    said    H.   T.    C.   to    pay    into    the   hands 

of   the   clerk   of   this  court   for   the   said  R.   B..   said  sum   of   $ la^t 

mentioned,  within  the  times  following,  to-wit :  (Here  give  dates  for 
payment),  and  upon  the  full  payment  thereof  within  such  times  the  said 
H.  T.  C.  upon  precipe  filed  for  that  purpose  shall  have  his  execution  on 
the  judgment  upon  which  these  proceedings  are  founded.  But  in  default 
of  such  payment  all  proceedings  upon  such  judgment  are  perpetually  stayed. 

And  it  is  further  considered  by  the  court  that  said  R.  B.  recover  of 
the  said  H.  T.  C.  his  costs  herein,  taxed  at  $ . 


705  FORMS. 

No.  447.     Another  form  for  a  petition  in  an  action  to  recover 
possession  of  real  estate. 

Court  of  Common  Pleas,  County,  Ohi 

,  Plaintiff. 


vs.  Petition 
,  Defendant. 

1.  First  Cause  of  Action. 

Plaintiff  says  that  he  has  a  legal  estate  in  and  is  entitled  to  the 
possession  of  the  following  described   lands,  tenements  and  hereditaments, 

with  the  appurtenances,  situate  in  the  said  County  of  .  and  State 

of  Ohio,  and  bounded  and  described  as  follows,  to-wit:     (Here  describe  it). 

The  said  defendant  unlawfully  keeps  the  plaintiff  out  of  possession  of 
said   real  estate,   and  has  so  unlawfully  kept   him  out  of  said   possession 

continuously  since  the  day  of  ,   19 ,  to  the  damage 

of  the  plaintiff  in  the  sum  of  $ . 

2.  Second  Cause  of  Action. 

Plaintiff  here  adopts  all  and  singular  the  statements  contained  in  his 
first  cause  of  action  herein  and  makes  them  part  hereof  as  if  the  same 
were  here  again  stated  as  matter  of  inducement,  and  says  that  from  about 
the  day  of  ,  19 .  the  said  defendant  has  taken,  re- 
ceived and  enjoyed  all  the  rents  and  profits  of  such  premises  hereinbefore 
described,  continuously  until  the  bringing  of  this  action,  and  still  is  so 
enjoying  sai-ie,  which  were  and  are  of  great  value,  to-wit:  of  the  value 
of  $ per  annum. 

The  said  defendant  has  committed  great  injury  and  waste  upon  said 
premises,  as  follows,  to-wit:  (Here  allege  specifically  the  acts,  nature 
and  extent  of  such  waste)  to  the  damage  and  injury  of  said  premises  in 
the  sum  of  $ . 

Wherefore,    plaintiff   asks    for    a    judgment    for    the    possession    of    said 

premises   against   defendant;    and  for   $ his   said   damages,   and   for 

the  value  of  said  rents  and  profits  of  said  real  estate,  for  his  costs  and 
for  such  other  and  further  relief  in  the  premises  to  which  he  may 
be  entitled. 


Attorney  for  Plaintiff. 
(The  petition  should  be  verified  as  in  other  actions.) 

[Note:     The  foregoing  form  is  adapted  from  Ya pie's  Code  Pleadings — 
Subject:     Action  to  recover  possession  of  real  estate.] 


CHAPTER  XX. 

LAW  AND  PROCEDURE  WHEN  COURTS  AUTHORIZE 
EXECUTORS  AND  ADMINISTRATORS  TO  COM- 
PLETE DECEDENT'S  LAND  CONTRACTS. 


SECTION.  SECTION. 

605.  When    the    survivors    of    ven-  action  may  be  filed,  and  the, 

dors    of    land    may    be    an-  recmirements  of  the  law  as 

thorized    to    convey    it.  to    the    parties    to    the    ac- 

606.  What   the   petition    must  con-  tion. 

tain    in    such    instances.  600.     When    the    court    may    order 

607.  The    order    of    the    court    in  conveyance — Deed    and    its 

such     instances     and     deed  effect. 

for   the    real    estate.  610.     When    the    heirs    of    deceased 

608.  An    action   by    an   administra-  purchaser  may  have  a  like 

tor    to   complete   decedent's  action, 
real    contract — Where    the 


Sec.   605.     When   the  survivors   of  vendors  of  land  may  be 
authorized  to  convey  it. 

When  two  or  more  persons  who  own  an  interest  in  land 
become  bound  in  writing  for  the  sale  and  conveyance  thereof, 
and  one  of  them  dies  before  the  land  is  conveyed,  the  sur- 
vivor or  survivors  may,  by  petition  against  the  purchaser,  and 
the  heirs  or  devisees  of  such  deceased  party,  be  authorized  to 
complete  such  contract.1 

Sec.  606.     What  the  petition  must  contain  in  such  instances. 

In  such  instances  the  petition  must  set  forth  the  names 
of  all  the  contracting  parties,  describing  the  lands  contracted 
for,  state  the  time  the  contract  was  made,  that  the  contract 
has  been  fully  performed  by  the  purchaser,  and  have  annexed 
a  copy  of  the  contract.2 

J  On'l  Code.  §11019  (R.  S.  the  petition.  See  440  for  answer 
§  57!'7  I ,  of  a  defendant  and  450  for  answer 

2  Gcn"I      Code.      §  1U)20      ( R.      S.        of  widow. 
§5798).     See   No.  448  for  form  for 

706 


707 


LAW    AND    PROCEDURE    TO    COMPLETE    CONTRACTS.  §  607 


Sec.  607.     The  order  of  the  court  in  such  instances  and  deed 
for  such  real  estate. 

If  the  court  finds  the  allegations  of  the  petition  to  be  true, 
it  may  make  an  order  authorizing  and  empowering  the  sur- 
vivors to  complete  the  contract  by  conveying  the  land;  and 
the  deed  must  recite  the  order,  and  shall  convey  as  complete 
and  perfect  a  title,  and  have  the  same  effect  as  if  conveyed 
by  all  the  owners.3 

Sec.    608.     An   action   by   an   administrator   to   complete   de- 
cedent's real  contract — Where  the   action   may  be  filed, 
and  the  requirements  of  the  law  as  to  parties  to  the  action. 
When  a  person  who  has  entered  into  a  written  contract  for 
the  sale   and   conveyance   of  an   interest   in  land,   dies  before 
the   completion   thereof,    and    his    executor,    administrator,    or 
other  legal   representative,   desires   to   complete   the   contract, 
he  may  file  a  petition  therefor  in  the  court  of  common  pleas 
or  probate  court  of  the  county  in  which  the  land,  or  any  part 
thereof,    is  situated;    if  the   petition   be   filed   in    the    probate 
court,   service  may  be  made  therein  as  in  civil  actions;   and 
the    heirs    at    law,    devisees    or    other    legal    representatives    of 
the  deceased  vendor,  when  not  plaintiffs,  must   be  made  de- 
fendants in  the  action.4 


Sec.  609.     When  the  court  may  order  conveyance — Deed  and 
its  effect. 

The  court,  after  causing  to  be  secured  to  and  for  the  benefit 
of  the  estate  of  the  deceased,  its  just  part  and  proportion  of 
the  consideration  of  the  contract,  may  authorize  the  executor, 
administrator  or  other  legal  representative,  to  complete  the 
contract,  and  to  execute  a  deed  for  and  on  behalf  of  the  heirs 
at  law  to  the  purchaser,  which  deed  shall  recite  the  order,  and 


sCen'I  Code,  §  11021  (R.  S. 
§  5799).  See  451  for  decree  of  court 
authorizing  completion    of  contract 

4Gen'l  Code,  §  11922  (R.  8. 
§5800).  See  No.  451,  et  seq.,  fo 
procedure  in  this  action.  See  also 
Murdnek  v.  Lentz,  84  O.  S.  589 
wherein  it  whs  held  that  if  the  con- 
tract in  such  instances  should  be 
void,  the  court  would  not  have 
jurisdiction   to   entertain   an   action 


thereon:  and  in  Long  v.  Mulford, 
17  0.  S.  485.  it  was  held:  "In  a  suit 
by  bill  in  equity  against  an  infant 
for  the  specific  performance  of  an 
alleged  contract  with  his  ancestor, 
he  is  entitled  to  a  day  in  court  after 
coming  of  age,  to  show  cause  against 
a  decree,  and  if  an  absolute  decree 
be  taken  against  him,  it  will  be 
error." 


§  610  MERWINE   ON    REAL   ACTIONS.  708 

be  as  binding  on  tbe  heirs  at  law,  and  all  other  persons  in- 
terested, as  if  it  had  been  made  by  the  deceased  in  his  life- 
time.5 

Sec.  610.     When  the  heirs  of  deceased  purchaser  may  have  a 
like  action. 

The  heirs  at  law,  or  devisees  of  a  person  who  purchased  an 
interest  in  land  by  written  contract,  and  died  before  the 
conveyance  thereof  to  him,  may  compel  such  conveyance  as 
the  deceased  might  have  done.6 

sGen'l     Code,     §11023      (R.     S.  •  Gen'l     Code,     §11924      (R.     S. 

§5801).     See  No.  452  for  form  for       §5802). 
deed. 


FORMS. 


FORMS  OF  PROCEDURE  FOR  COMPLETION,  BY  THE 

REPRESENTATIVES  OF  A  DECEDENT, 

OF  HIS  REAL  CONTRACTS. 


FORMS.  FORMS 

448.  Petition  to  complete  real  con-       452. 

tract. 

449.  Answer  of  defendants  in  such       453. 

cases. 

450.  Answer  of  widow  in  such  case. 

451.  Entry    ordering    legal    repre- 

sentative  to   complete   con-       454. 
tract. 


Form  for  deed  to  complete 
decedent's  land  contract. 

Another  form  for  petition  by 
an  administrator  to  com- 
plete decedent's  contract 
for  sale  of  land. 

Form  for  a  petition  by  a  sur- 
viving contractor. 


[Note:  It  is  to  be  observed  that  the  action  may  be  brought  either 
in  the  Court  of  Common  Pleas  or  in  the  Probate  Court.  We  here  give 
the  procedure  in  the  Probate  Court.] 


No.  448.     Petition  to  complete  real  contract. 

County,  Ohio. 


No- 


Probate  Court, 

H.  G.  E.,  as  Administratrix  of  the 
estate  of  J  W.  E.,  Deceased, 
Plaintiff, 
vs. 

H.   G.   E.,  H.   C.   E.,   a   minor,  under   the 
Guardianship  of  W.  H.  I.,  and  A.  A  H, 
Defendants. 

The   plaintiff  represents   that   she   is  the   duly  appointed   and  qualified 

administratrix  of  the  estate  of  J.  W.  E.,  deceased;   that  on  the  

day   of  ,    10 ,   the    said   J.   W.   E.,   then    in   full   life,   entered 

into   a   contract    in   writing  with   the   said   A.   A.   H.,   for   the    sale   of   the 

following   described   real   estate,    situate   in   the   County   of   ■ — ,   and 

the  State  of  Ohio,  and  in  the  City  of  — — ,  to-wit:  (Here  insert  de- 
scription of  real  estate),  upon  the  following  terms,  to-wit:  (Here  set 
forth  the  terms  of  the  contract),  as  will  appear  by  said  contract,  a  copy 
of  which  is  hereto  attached,  marked  "Exhibit  A." 

The  said  A.  A.  H.  has  made  all  payments  in  accordance  with  said  con- 
tract up  to  ,  19 ,  and  has  kept  and  performed  all  agreements 

709 


MERWINR    ON    REAL    ACTIONS.  710 

in  saidWontract  on  his  part  to  be  kept  and  performed  and  is  ready  and 
willing  to  pay  the  balance  remaining  due  and  unpaid,  as  provided  by  said 
contract,  for  the  said  estate,  and  to  perform  all  the  agreements  of  said 
contract  on  his  part  to  be  performed,  as  soon  as  a  valid  deed  can  be  made 
to  him  for  said  premises. 

The   said  defendants.   H.    G.    E.,   who    is    the   widow   of   J.   W.   E.,   and 

H.   C.  E.,  a  minor   son  of  said  J.   W.   E.,  aged  years,  and   under  the 

guardianship  of  W  B.  1.,  are  the  sole  heirs  at  law  of  said  J.  W.  E., 
deceased. 

Your  petitioner  desires  to  complete  said  contract  and  therefore  prays 
that  said  heirs  at  law  and  the  said  A.  A.  H.  may  be  made  defendants 
herein,  and  that  she,  as  such  administratrix,  may  l>e  authorized  to  complete 
said  real  contract,  and  upon  payment  of  the  amount  remaining  due  and 
unpaid  of  said  purchase  money,  as  provided  by  said  contract,  to  execute 
and  deliver  to  said  A.  A.  H.,  for  and  on  behalf  of  the  aforesaid  heirs 
at  law  of  said  deceased  and  all  other  persons  interested,  a  good  and  suffi- 
cient deed  in  fee  simple,  for  the  real  estate  hereinbefore  described;  that  she, 
as  such  administratrix,  may  also  be  authorized  to  receive  and  accept  from 
the  said  defendant,  A.  A.  H.,  his  promissory  note  payable  as  provided  in 
said  contract,  with  interest  as  therein  provided,  for  the  balance  of  said 
purchase  money,  the  said  note  to  be  secured  by  a  first  mortgage  to  be 
executed  and  delivered  by  the  said  A.  A.  H.  upon  said  premises,  and  for 
all  proper  orders  and  relief  in  the   premises. 

W.  T.  MoC, 
Attorney  for  Plaintiff. 

(This  petition  should  be  verified  as  in  other  instances,  and  there  should 
be  attached  to  it  a  copy  of  the  land  contract.) 

No.  449.     Answer  of  defendants. 

(Same  caption  as  in  the  petition.) 

Answer. 

And  now  come  H.  C.  E.,  under  the  guardianship  of  W.  H.  I.,  and 
A.  A.  H.,  defendants  in  the  above  entitled  cause,  and  for  answer  to  the 
petition  in  said  case  filed,  do  severally  say  that  they  are  fully  aware  of 
the  nature  and  contents  of  said  petition,  and  they  do  each  waive  the  issue 
and  service  of  process  or  notice,  and  enter  their  appearance  herein  anil 
freely  consent  to  the  sale  of  said  premises  as  in  said  petition  prayed  for. 

H.  C.  E., 
By  W.  H.  T.,  his  (iuardian. 
A.  A.   H. 
(This  answer  should  be  verified.) 

No.  450.     Answer  of  widow  in  such  case. 

(Same  caption   as   in   Hie   petition.) 

And  now  conies  II.  G.  E.,  one  of  the  defendants  in  the  above  entitled 
cause    and    voluntarily    enters    her    appearance    herein,    and    for    answer    to 


711  FORMS. 

the  petition  in  this  case  filed,  says  that  she  is  the  widow  of  said  J.  W. 
E.,   deceased,   and   as  such   is  entitled   to   dower   in   the   premises   described 

in  said   petition,   that   her  age   was  years   at   the   death  of   decedent, 

that  she  freely  consents  to  said  sale  as  prayed  for,  and  waives  the  assign- 
ment of  dower  in  said  premises  by  metes  and  bounds  or  in  rents  and 
profits;  and  asks  the  court  that  said  premises  may  be  sold  free  from  her 
dower  estate  therein,  and  that  the  value  of  such  dower  estate  may  be 
allowed  and  paid  her  in  lieu  thereof  out  of  the  proceeds  of  the  sale,  such 
sum  of  money  as  the  court  deems  the  just  and  reasonable  value  of  her 
dower  interest  in  said  real  estate. 

H.  G.  E. 
(This   answer   is   verified   as   in   other   actions.) 

No.  451.     Entry  ordering  administratrix  to  complete  contract. 

(Same  caption  as  in  the  petition.) 

Entry. 

This  day  this  cause  came  on  to  be  heard  upon  the  pleadings,  evidence 
and  testimony,  and  the  court  being  fully  advised  in  the  premises,  finds 
as  follows: 

That    the    defendants   herein,   H.   G.    E.,   widow   of   J.    W.    E.,   deceased, 

and  H.  C.   E.,  a  minor years  of  age,  under   the  guardianship  of  W. 

H.  I.,  and  A.  A.  H.,  have  each  been  duly  and  legally  served  with 
process,  or  have  voluntarily  entered  their  appearance  herein,  and  are  aow 
properly  before  the  court;  that  the  statements  and  allegations  in  the  peti- 
tion are  true;  that  the  said  J.  W.  E.,  did,  during  his  lifetime,  enter  into 
a  contract  with  the  said  A.  A.  H.,  by  which  it  was  agreed  that  he  would, 

for  the  consideration  of  $ ,  sell  and  convey  unto  the  said  A.  A.  H. 

the  premises  in  the  petition  described;  that  the  said  defendant,  H.  G.  E., 
has  filed  her  answer  herein,  and  has  waived  the  assignment  of  dower  in  said 
premises  by  metes  and  bounds  or  by  rents  and  profits,  and  has  asked  that 
the  value  of  her  dower  interest  be  allowed  and  paid  to  her  out  of  the 
proceeds  of  said  sale. 

It  is  therefore  ordered  and  adjudged  by  the  court,  that  the  said  H. 
G.  E.,  as  administratrix  as  aforesaid,  be,  and  she  is  hereby  authorized 
and  empowered  to  complete  and  carry  out  said  contract  according  to  its 
terms  and  conditions,  and  to  accept  and   receive  from  the   said   A.   A.  H. 

the  sum  of  $ as  a  balance  for  the  purchase  money  of  said  premises, 

the  same  to  be  evidenced  by  his  promissory  note  for  said  sum  to  be 
secured  by  a  first  mortgage  upon  the  premises  to  be  conveyed  as  here- 
after   ordered,    said    note   to   bear    interest    at    the    rate   of   per   cent. 

per    annum,   payable    semi-annually,   the   principal    to   be   paid   monthly    in 

payments  of  $ each  due  and  payable  on  the  day  of  each 

and  every  month   after  the  date  thereof,  until   said   sum  of  $ with 

interest  as  aforesaid,  be  paid,  said  sum  being  the  balance  due  upon  said 
contract,  as  the  purchase  money  for  said  premises,  and  to  make,  execute 
and  deliver  a  good  and  sufficient  deed  for  all  the  right,  title  and  interest 
of  all  the  defendant  heirs  at  law  of  the  said  J.  W.  E.,  deceased,  and  free 


3IERWINE    ON    REAL    ACTIONS.  712 

from  the  dower  interest  of  the  said  H.  G.  E.,  in  and  to  the  premises 
described  in  the  petition  to  the  said  purchaser,  A.  A.  H. 

And  the  court  finds  that  the  just  and  reasonable  value  of  the  dower 
interest  of  the  said  H.  G.  E.  in  and  to  said  premises  to  be  the  sum  of 
$ and  that  she  is  entitled  to  have  the  same  paid  to  her. 

It  is  further  ordered  that  this  proceeding  be  recorded  in  the  records 
of  this  office  and  that  said  plaintiff  pay  the  costs  herein  taxed  at  $ . 

No.  452.     Form  for  such  deed. 

Know  all  Men  by  These  Presents:   That, 

Whereas,  On  the day  of .  19 .  H.  G.  E.  was  duly 

appointed  and  qualified  as  administratrix  of  the  estate  of  J.  W.  E.,  de- 
ceased, late  of  said  County,  by  the  Probate  Court  of  said  county, 

and  afterward,  to-wit:    on  the  day  of  ,  H.  G.  E.,  filed 

her  petition  in  the  Probate  Court  of  said  county  asking  for  an  order  of 
said  court  authorizing  her  to  complete  a  contract  made  by  the  said  J.  W. 
E.  to  sell  certain  real  estate  therein  described;   and 

Whereas.  Afterwards,  on  the  day  of  — -,  said  petition 

came  on  to  be  heard  and  the  court  ordered  that  the  said  H.  G.  E.  complete 
said  contract  and  make,  execute  and  deliver  to  the  said  A.  A.  H.  a  war- 
ranty deed  in  fee  simple,  for  said  premises,  upon  payment  of  the  purchase 
money  remaining  unpaid,  as  provided  for  in  said  contract  and  upon  the 
terms  thereof,  which  order  is  in  the  words  as  follows,  to-wit:  And  to 
make,  execute  and  deliver  a  good  and  sufficient  deed  for  all  the  right,  title 
and  interest  of  all  the  defendant  heirs  at  law. of  said  J.  W.  E.,  deceased, 
and  free  from  the  dower  interest  of  the  said  H.  G.  E.  in  and  to  the  premises 
in  the  petition  described,  to  the  said  purchaser  A.  A.  H.,  all  of  which 
will  more  fully  appear  by  the  records  of  said  court,  to  which  reference 
is  hereby  made. 

Now  Therefore  I.  H.  G.  E.,  as  administratrix  of  the  estate  of  J. 
W.  E.,  deceased,  aforesaid,  by  virtue  of  said  proceedings  and  of  the  statute 
in  such  case  made  and  provided,  and  of  the  power  vested  in  me.  and  for 

and   in   the   consideration  of  $ — paid  by   said  A.   A.   H.,  the  receipt 

whereof  is  hereby  acknowledged,  do  hereby  grant,  bargain,  sell  and  convey 
unto  the  said  A.  A.  H..  his  heirs  and  assigns  forever,  all  the  right,  title 
and   interest   that   the   said  .j.   W.   E.,  owned   in  the  following  real  estate 

situated    in    the   County   of   .    State   of    Ohio,   and   in   the    City   of 

■,  bounded  and  described   as  follows:       (Hero   insert  description  of 

real  estate.) 

To  Have  and  to  Hold  said  premises,  with  all  the  privileges  and  ap- 
purtenances thereunto  belonging  to  the  said  A.  A.  H.,  his  heirs  and 
assigns  forever,  as  fully  and  completely  as  she.  the  said  H.  G.  E.,  as 
such  administratrix,  by  virtue  of  said  order  of  the  court  and  of  the  statute 
made  and  provided  for  such  cases,  might  or  should  sell  and  convey  the  same. 

In    Witness    Whereof,    the    said    H.    G.    E..    as    such    administratrix 

has  hereunto  set  her  hand,  this  day  of  ,  10 . 

H.  G.  E., 
As  Administratrix  of  the  Estate  of  J.  W.  E.,  Deceased. 


713  FORMS. 

Signed  and  acknowledged  in  the  presence  of 


State  of  Ohio, 

County  of ,  ss. : 

Be  it  Remembered,  That  on  this  day  of  ,  19 , 

before  me,  the  subscriber,  a  notary  public  in  and  for  said  county,  per- 
sonally came  the  above  named  H.  G.  E.,  as  administratrix  of  the  estate 
of  J.  W.  E.,  deceased,  the  grantor  in  the  foregoing  deed,  and  acknowledged 
the  signing  of  the  same  to  be  her  voluntary  act  and  deed  as  such  admini- 
tratrix  for  the  uses  and  purposes  therein  mentioned. 

In  Testimony  Whi:reof,  I  have  hereunto  subscribed  my  name  and  af- 
fixed my  official   seal  on  the  day  and  year  last  aforesaid. 


Notary  Public,  County,  Ohio. 

No.  453.     Petition  by  an  administrator  to  complete  decedent's 
contract  for  sale  of  land. 

Common  Pleas  Court,  County,  Ohio. 

,  as  Administrator  of  the  Estate 

of ,  Deceased,  and and 

,  Heirs-at-law  of  said , 

Deceased, 

Plaintiffs, 
vs.  Petition. 
and    ,     as     the     Legal 


Guardians  of  ,  an   Infant,  and 

said     ,     Heirs-at-law     of     said 

,  Deceased, 

Defendants. 

On  cr  abcut  the  day  of  ,  19 ,  the  said , 

late  of  the  County  of  ,  and  State  of  ,  died  intestate,  leav- 
ing the  plaintiffs,  said and  said ,  and  the  said  defendant, 

,  who  is  an  infant    aged  about  years,  and  whose  legal  guar- 


dian is  the  said  defendant,  ,  his  sole  heirs-at-law. 

Plaintiff,  ,  is  the  duly  appointed,  qualified  and   acting  admin- 
istrator  of    said    ,   deceased;    a    duly   certified   copy  of   his   letters 

of  administration  is  hereto  attached  marked  "A." 

The   said  died  possessed   of   the   legal   title     in   fee    simple,   to 

the  following  described  lands  and  tenements,  to-wit:      (Here  set  forth  the 
description  of  the  real   estate.) 

Said  left  a  widow,  who  has  duly  executed  and  acknowledged 

a  deed  for  release  for  said  ,  of  said  premises,  releasing  her  dower 

in    said    premises,   which    deed    is  brought    into   the   court   by    plaintiffs   to 

be  deposited  with   the  clerk  for  said  and  to  be  delivered   to  him 

upon  the  execution  to  the  said of  the  deed  as  hereinafter  asked. 


MERWINE    ON    REAL    ACTIONS.  714 

During  his  lifetime,  the  said ,  on  the day  of , 

19 ,  contracted,  in  writing,  with  said  ,  to  sell  and  convey  to 

said  in   fee  simple,  by   deed  of  general   warranty,   said   premises 

with  the  appurtenances,  to  said  ,  which  contract  was  in  substance 

as  follows :  ( Here  the  contract  should  be  set  forth  in  substance ) ,  a  copy 
of  which  said  contract  is  hereto  attached  marked  "B-."  and  that  laid 
contract  was  not  completed  by  said  in  his  lifetime,  and  the  plain- 
tiffs desire  to  complete  the  same  according  to  its  terms. 

Wherefore  the  plaintiffs  pray  that  the  court,  after  causing  to  be  se- 
cured to  and  for  the  benefit  of  said  estate  of  said  deceased  its  just  part 
and  proportion  of  the   said  consideration  of   said  contract,  may  authorize 

the  said  ,  as  such  administrator  and  legal  representative  of    *aid 

,  deceased,  to  complete  said  contract,  and  to  execute  deeds  of  gen- 
eral warranty  for  and  on  behalf  of  the  heirs-at-law  to  the  said  purchaser, 
which  shall  be  as  binding  on  such  heirs-at-law  as  if  the  same  had  been 
made  by  said  deceased  in  his  life-time;  and  for  all  proper  relief  in  the 
premises. 


Attorneys  for  Plaintiffs. 
(This  petition  should  be  verified.) 

No.   454.     The  petition  of  a  surviving  contractor  to  convey 
lands  of  decedent  to  purchaser. 

Court  of  Common  Pleas, — —  County,  Ohio. 


Plaintiff, 
vs.  Petition. 


and 


Heirs-at-law  of  ,  Deceased, 

Defendants. 

The  defendants,  and  ,  are  sole  heirs-at-law  of  , 

late  of County,  and  State  of  Ohio,  deceased,  and  the  said  

is  an  infant  under  the  age  of years  and  has  no  legal  guardian. 

On  or  about   the  day   of  ,    19 ,   he   and   the   said 

,    deceased,   were  the  owners   and   seized    in   fee   simple  of   a   good 

and  unincumbered  title  of  and  to  the  following  lands  and  tenements,  with 
the  appurtenances,  described  as  follows,  to-wit:  (Here  describe  the  real 
estate) . 

On  said  last  named  date  the  plaintiff  and  said .  deceased,  entered 

into    a    written    contract    with    the    said    defendant,    ,    to    sell    and 

convey  to  him  in  fee  simple,  by  a  good  and  sufficient  deed  of  warranty, 
for  -aid  terms,  with  the  appurtenances,  which  was  as  follows:  (Here  si  liege 
the  contract  according  to  the  substance  and  legal  effect  of  its  terms).  ;t 
copy  of  said  contract   is  annexed  hereto,  and  said  contract  has  been  fully 

performed  by  the  purchaser,  said  defendant,  . 

Said  also  left  a   widow.  .  who  has  executed  for  Raid 

her    deed    of    release,   by    which    she    released    1km-    dower    in    said 


715  FORMS. 

premises,  which  deed  is  now  brought  into  court  by  plaintiff,  to  be  deliv- 
ered to  said  ,  when  the  plaintiff  shall  be  authorized  by  the  court 

to   make   and   deliver   for   him   a   deed  for    said    premises. 

Wherefore    plaintiff  prays   to   be  authorized   to  complete  said  contract 

by  conveying  to  said  such  premises,  with  covenants  of  warranty, 

the  same  as  he  and  said  might  have   done  were  said  

living,  according  to  the  statute  in  such  cases  made  and  provided,  and  for 
all  proper  relief. 


Attorneys  for  Plaintiff. 

(This  petition  is  verified  as  in  other  actions.) 

[Both  the  above  forms  are  adapted  from  Yaple's  Code  Pleading;  Sub- 
ject: Actions  to  Complete  Contracts  for  Sale  of  Real  Estate  made  by 
persons  who  have  died.] 


CHAPTER  XXI. 
THE  ACTION  TO  CONTEST  A  WILL. 


G12. 
013. 
614. 


615. 
616. 

617. 


618. 


619. 


620. 


SECTION. 

621.     The  manner  in  which  the  is- 
sue is  made  up. 

The  conduct   of   the   trial. 

The  action  to  be  tried  by  a 
jury — The  court  may  di- 
rect a  verdict. 

The  effect  of  the  order  of 
probate   on    the   issue. 

The  testimony  upon  the  pro- 
bate of  the  will  becomes 
competent,  when. 

Who  may  contest  a  will  or 
codicil. 

The  necessary  parties  to  the 
action. 

The  limitation  of  the  action 
to  contest  a  will. 

Error,  not  appeal,  lies  in  the 
action  to  contest  a  will. 


622. 
623. 


624. 


625. 


626. 


627. 


628. 


629. 


SECTION. 

611.     The  nature   of  the   action  to 
contest  a  will. 
The  scope  of  the  inquiry. 
Who  may  make  a  will. 
What  constitutes  a  sound  and 
disposing   mind   and    mem- 
ory. 
Undue  influence. 
The  manner   in   which   a   will 

must  be  executed. 
The    acknowledgment    by    the 
testator    and    the    attesta- 
tion of  the  will. 
The   manner   in  which   a   will 

may  be  revoked. 
The  certificate  from  the  clerk 

to  the  probate  court. 
Duty  of  the  probate  judge  on 
notice  of  contest — Papers 
to  be  sent  to  the  common 
pleas  and  what  return  is 
made  to  the  probate  court. 

Sec.  611.    The  nature  of  the  action  to  contest  a  will. 

Prior  to  the  Civil  Code,  the  action  to  contest  a  will  was  a 
suit  in  chancery;  and  then,  as  now,  the  Wills  act  provided  that 
the  issue  should  be  made  up  whether  the  writing  produced 
be  the  last  will  and  testament  of  the  testator  or  not,  and  the 
action  was  tried  by  a  jury.1 

No  answer  was  necessary  in  the  action,  for  the  reason  that 
the  statute  made  up  the  issue,  and  the  manner  of  the  proceed- 
ing could  not  he  changed  by  the  pleadings  after  the  bill  in 
chancery  was  filed.2 

Even  after  the  adoption  of  the  Civil  Code,  the  nature  of 
the  action  was  not  changed.     The  action  could  be  prosecuted 


iDew  v.   Eeid,  52   0.  S.  523. 


2  Green  v.  Green,  5  O.  279. 

710 


717  ACTION    TO    CONTEST    A    WILL.  §  611 

"either  according  to  the  forms  of  a  suit  in  chancery,  or  by 
a  petition  under  the  code  of  civil  procedure."3 

It  has  been  said  of  the  action  that.  "While  a  proceeding 
for  the  contest  of  a  will  is  conducted  by  an  original  action 
the  court  exercises  the  probate  jurisdiction  of  finally  estab- 
lishing or  rejecting  the  will,  and  the  proceeding  is  in  the  nature 
of  an  appeal  from  the  order  of  probate.4 

'That  though  actions  of  this  nature  are  now  denominated 
civil  actions,  yet,  in  so  far  as  they  are  governed  by  special 
statutory  regulations  inconsistent  with  the  rules  of  pleading 
and  procedure  under  the  Code,  the  latter  are  inapplicable,  so 
that  the  issue  which  shall  be  made  up  and  tried  in  such 
cases,  having  been  specifically  prescribed  by  the  statute,  can 
not  be  varied  or  restricted  by  averments  in  the  pleadings, 
whether  controverted  or  not,  and  that,  while  that  issue  may 
be  made  up  either  by  the  pleadings  or  by  an  order  entered 
upon  the  journal  of  the  court,  it  must,  whichever  the  mode 
adopted,  be  the  broad  issue  required  by  the  statute,  whether 
the  instrument  produced  is  the  valid  will  of  the  alleged 
testator ;  and  as  the  proof  may  be  commensurate  with  the  issue, 
any  competent  evidence  tending  to  prove  that,  for  any  reason, 
it  is  not  his  valid  will,  is  admissible,  and  should  receive  proper 
consideration  from  the  jury."5 

When  a  will  is  presented  to  the  probate  court  for  record, 
that  court  must  hear  the  testimony  of  the  witnesses,  and  upon 
such  testimony  the  court  is  required  to  refuse  to  probate  it 
or  to  admit  it  to  probate.  If  the  paper  writing  is  not  admitted 
to  probate,  then  a  proper  party  aggrieved  thereby,  may  appeal 
from  such  decision  to  the  next  term  of  the  court  of  common 
pleas.6 

An  order  of  the  court,  admitting  a  paper  as  a  last  will  and 
testament,  is  not  reviewable  on  petition  in  error,  though  an 
order   refusing  to  admit  such  paper  to  probate   is  reviewable.7 

3  Brown  v.  Griffith,  11  0.  S.  329;  6  Gen'l     Code.      §  10532      (R      S 

Dew  v.  Reid.,  52  0.  S.  329.  §5934). 

^Mears   v.    Mears,    15    0.    S.    90;  7  Holrah  v.  Lasance.  03  O.  S.  58. 

Converse  v.  Starr,  23  0.  S.  498.  In  this  last  case  §§  5944  to  5948  and 

s  Dew  v.  Reid,  52  0.  S.  329;  Win-  §  5933  were  discussed,  and  Mission- 

dersch  v.  Brewing  Co.,  17  C.  C.  465:  ary   Society   v.    Ely,   56    0.    S.    405. 

Kilpatrick    v.    Humphries,   8    X.    P.  was    distinguished '  from    Mosier    v! 

245'  Harmon,    29    O.    S.    58.      See    also 

Stacy  v.  Cunningham,  69  0.  S.  181. 


§  Cll  MERWINE    ON    REAL    ACTIONS.  718 

When  a  court  refuses  to  admit  a  will  to  probate,  then  a 
party  aggrieved  may  either  prosecute  an  appeal,  or  repropound 
the  will,  or  have  the  same  reviewed  by  proceedings  in  error; 
but  it  would  seem  that  only  those  persons  interested  in  the 
will,  who  have  not  received  the  notice  required  by  law  of  the 
hearing  to  probate,  can  repropound  the  will.8 

The  hearing  in  the  probate  court  for  the  probating  a  will 
is  ex  parte  in  its  nature,  and  the  order  admitting  the  will  is 
final  in  that  court,  and  the  will  cannot  be  set  aside  except  by 
the  action  to  contest  it  in  the  common  pleas  court.  There  is 
no  appeal,  or  right  to  file  a  petition  in  error  to  review  the  order 
of  probate.  After  the  will  has  been  admitted  to  probate,  and 
the  action  begun  in  the  proper  court  to  contest  it  under  the 
statute,  then  the  proceeding  is  in  the  nature  of  an  appeal, 
though  triable  to  a  jury.  All  questions  are  to  be  heard  and  de- 
termined de  novo,  as  upon  appeal,  the  probate  proceedings 
making  a  prima  facie  case  in  favor  of  the  writing  produced.9 

The  filing  of  such  action  to  contest  the  validi.y  of  a  will 
admits,  on  the  part  of  the  plaintiff,  the  probate  of  the  will 
put  in  contest,  and  such  plaintiff  will  not,  on  the  trial  of  the 
action  in  the  common  pleas  court,  be  heard  to  say  that  such 
proceedings  by  which  the  will  was  admitted  to  probate  were 
irregular,  or  that  that  court  had  no  jurisdiction  to  probate  the 
will.  However  no  action  can  be  brought  in  the  court  of  com- 
mon pleas  to  contest  the  validity  of  a  will  until  the  will  has 
been  admitted  to  probate.10 

The  jury  in  the  action,  has  no  right  to  consider  or  pass 
upon  the  validity  or  invalidity  of  any  part  of  the  will,  nor 
has  the  court  any  right  or  power  to  instruct  the  jury  as  to 
the  same  The  functions  of  the  court  and  jury  in  the  action 
are  solely  to  ascertain  and  determine  the  question :  Is  the 
paper  writing  admitted  to  probate  the  last  will  and  testament 
of  the  testator?11 

8  1    Rockel's    Complete    Qhio   Pro-  jury    see    Brundidpe   v.    Benton,    1? 

bate   Law  and   Practice,   Sec.    1115;  W.    L.    B.    240.     Trwin    v.    Jacques, 

Feuchter    v.    Keyle,    48    0.    S.   357;  71   0.  S.  395.     Tn  an  action  to  con- 

Stacy's  Will.  4   X.   P.   133.  test  a  will  on  the  sole  ground  that 

o  Haynes  v.  Haynes,  33  <>.  S.  <>1S.  it  was  not  signed  at  the  end  thereof 

io  Stacy  v.  Cunningham,  (!'•>  <».  S.  as  required  by  the  statute,  its  con- 

181 ;  Converse  v.  Starr,  23  O.  S.  493.  struction   and    interpretation   is   not 

ii  Mears   v.    Wears,    lf>   0.    S.   90;  a  subject  for  tlio  consideration  of  a 

Burger  v.  Sullivant,  2  N.   P.    X.   B.  court  or  jury.    Ibid. 
327:    but   as   to   special    verdict   of  a 


719  ACTION    TO    CONTEST    A    WILL.  §§  612-614 

Sec.  612.     The  scope  of  the  inquiry. 

The  statute  provides  that  before  a  will  may  be  admitted  to 
record,  it  must  he  made  to  appear  that  it  was  duly  attested 
and  executed,  in  writing,  and  that  the  testator,  at  the  time 
of  executing  the  same,  was  of  full  age,  and  of  sound  mind  and 
memory,  and  not  under  any  restraint.  These  requirements  of 
the  law  must  he  fulfilled  before  the  will  ean  be  admitted  to 
probate.  After  it  lias  been  probated,  the  scope  of  the  inquiry 
in  the  action  to  contest  its  validity,  may  be  as  comprehensive 
as  the  inquiry  for  the  admission  of  the  will  to  record.11'  The 
same  rules  of  law  applicable  to  the  contest  of  a  will  apply  as 
well  to  the  contest  of  a  codicil  to  any  will. 

Sec.  613.     Who  may  make  a  will. 

Any  person  of  full  age  and  of  sound  mind  and  memory,  and 
not  under  any  restraint,  having  any  property,  personal  or  real, 
or  any  interest  therein,  may  give  and  bequeath  the  same  to 
any  person  by  last  will  and  testament.13 

Sec.  614.     What  constitutes  a  sound  and  disposing  mind  and 
memory. 

The  strength  of  mind  required  to  make  a  will  is  not  that 
required  to  make  a  contract ;  for  a  person  may  have  a  mind 
of  sufficient  soundness  to  make  a  will  but  not  to  make  a  con- 
tract. A  testator's  mind,  at  the  time  of  the  making  and  the 
execution  of  his  will,  must  be  of  sufficient  strength  as  to 
enable  him  to  know  and  to  understand  the  nature  and  extent 
of  the  property  he  intends  to  bequeath  and  devise,  the  names 
of  the  persons  who  have  a  claim  upon  his  bounty,  and  the 
names  and  the  rights  of  all  of  his  children  who  are  naturally 
'dependent  upon  and  entitled  to  his  bounty ;  and  he  must  also 
know  and  be  able  to  understand  and  comprehend  his  true  rela- 
tions to  his  property.14 

"Oen'l     Code,     §10510      (K.     8.  611,  affirmed  in  75  0.  S.  036:   West 

§  5029)  :   Dew  v.  Reid.  52  O.  S.  526.  v.  Knoppenberger,  4  C.  C.  N.  S.  .305. 

isGen'l     Code,      §10503      ( R.     S.  As  to  validity  of  a  will  made  while 

§5014i.  dissolution    i*    taking    place,    sec   In 

"Pepple  v.  Pepple.  13  C.  C.  45:  re  Burrows,  8  X.  P.  35S.  As  to  de- 
Moore  v.  Caldwell,  C.  C.  X.  S.  4X4:  lusions  not  inconsistent  with  mental 
Ketterman  v.  Meteger,  3  C.  C.  X.  S.  capacity,  see  Xew.  etc..  v.  Crocker, 
224:  Joslyn  v.  Sedan,  2  W.  L.  B.  7  C.  C.  327:  Pd-n--'.  v  Davis,  30 
147;  Welsh  v.  Wilson.  0  C.  C.  N.  S.  '".   T.   B.  283.     As  to  the  effect  cf 


§§  615,616 


MERWINE    ON    REAL    ACTIONS. 


720 


Sec.  615.     Undue  influence. 

The  "restraint"  mentioned  in  the  statute  means  the  same 
as  the  term  "undue  influence,"  used  in  the  decisions  and  in 
the  text  books.  In  the  actions  to  contest  an  alleged  will,  if  it 
appears  that  the  alleged  restraint  or  influence  did  not  operate 
on  the  mind  of  the  testator  in  the  making  of  the  alleged  will, 
such  restraint  or  influence  is  then  clearly  not  undue  influence. 
Undue  influence,  such  as  to  invalidate  a  last  will  and  testa- 
ment, must  be  a  present  undue  influence  operating  upon  the 
testator's  mind  in  the  very  act  of  making  the  will,  and  of 
such  character  as  to  compel  him,  either  from  fear,  dis- 
ease, or  possibly  from  some  feeling  which  he  is  unable  to 
resist,  to  do  that  which  is  against  his  will,  and  also  destroy 
his  free  agency  and  substitute  for  his  own  another's  will. 
Mere  passion  and  prejudice,  the  influence  of  religious  or 
secular  training  or  association,  opinions  imbibed  in  the 
natural  course  of  one's  experience  and  contact  with  society, 
mere  argument  or  persuasion,  earnest  solicitation,  or  such  in- 
fluence as  one  may  deservedly  obtain  over  another,  are  as  a 
general  rule,  insufficient.  The  cases  in  Ohio  on  this  question 
are  too  numerous  for  review.  A  list,  of  a  few  of  them  will 
be  found  in  the  note  below.15 


£ec 


616.     The  manner  in  which  a  will  must  be  executed. 

The  law  requires  that  every  last  will  and  testament  (except 
nuncupative  wills  hereinafter  provided  for)  must  be  in  writing 
and  may  be  hand-written  or  type-written ;  and  such  will  must 
be  signed  at  the  end  thereof  by  the  party  making  the  same,  or 


the  long  continued  use  of  cocaine,  see 
In  re  Underbill,  21  W.  L.  B.  279; 
Goebel  190.  As  to  the  belief  that 
all  women  are  prostitutes,  causing 
a  testator  to  give  all  of  his  prop- 
erty to  his  sons  and  none  of  it  to 
his  daughters,  see  Joslyn  v.  Sedan, 
2  W.  L.  B.  147.  As  to  the  making 
of  a  will  by  an  aged  man  a  few 
hours  before  his  death  at  a  time 
when  he  was  suffering  intensely 
from  pneumonia,  see  In  re  Bur- 
rows, 8  X.  P.  358. 

18  Monroe  v.  Barclay.  17  0.  S. 
302;  Bapp  v.  Becker,  4  C.  C.  X.  S. 
139;  Mears  v.  Mears.  15  O.  S.  90; 
Ketterman   v.   Metzger,   3   C.   C.   X. 


S.  224;  Kime  v.  Addlesperger.  2 
C.  C.  X.  S.  27;  Truman  v.  Lore. 
14  O.  S.  144:  Bewell  v.  Warren,  4 
C.  C.  X.  S.  545;  Corbit  v.  Corbit, 
4  W.  L.  B.  1000;  Stump  v.  Carver, 
22  W.  L.  B-  365;  Tracey  v.  Sackett, 
1  0.  S.  54;  Page  on  Wills,  §  114; 
RockePs  Probate  Law  and  Practice, 
Sec.  1021 ;  Woerner's  American  Law 
of  Admin.,  31.  For  cases  under  un- 
due influence  of  persons  in  a  confi- 
dential relation  with  testator,  see 
Whitney  v.  Roth,  45  W.  L.  B.  — ; 
Monroe  v.  Barclay.  17  O.  S.  302; 
Kime  v.  Addlesperger,  2  C.  C.  X.  S. 
270;  Pepple  v.  Pepple,  13  C.  C.  43. 


721  ACTION  TO  CONTEST  A  WILL.  §  616 

by  some  other  person  in  his  presence  and  by  his  express  di- 
rection, and  shall  be  attested  and  subscribed  in  the  presence 
of  such  party,  by  two  or  more  competent  witnesses  who  saw 
the  testator  subscribe,  or  heard  him  acknowledge  the  same.16 

Where  a  will  is  not  executed  according  to  the  requirements 
of  the  Legislature,  in  the  interpretation  of  the  statute  regu- 
lating the  execution  of  wills,  the  intention  of  the  Legislature 
controls,  and  a  will  that  is  not  executed  as  required  by  statute 
is  invalid,  notwithstanding  the  intention  of  the  testator. 

It  was  held,  in  an  action  in  which  it  appeared  that  the  will 
was  not  signed  at  the  end  thereof  by  the  party  making  the 
same,  when  it  is  written  by  the  party  making  it,  upon  a  printed 
form  containing  a  testimonium  clause  with  blanks  for  the  name 
of  the  place  and  the  date  of  execution,  which  he  fills,  and 
immediately  following  this  a  blank  line  for  the  signature  of 
the  maker,  which  he  leaves  blank,  although  he  has  written  his 
name  in  the  attestation  clause  immediately  following  the  testi- 
monium clause,  in  a  blank  left  for  the  name  of  the  testator, 
and  may  have  intended  such  act  as  a  signing,  that,  when  it 
appears  on  the  face  of  the  will  that  it  was  not  signed  at  the 
end  thereof  as  required  by  statute,  it  is  not  error  for  the 
trial  judge  to  direct  a  verdict  that  the  writing  is  not  a  valid 
will.17 

In  another  action,  the  Supreme  Court  of  this  State,  in  com- 
menting upon  the  manner  of  the  signature  to  a  will,  set  forth 
the    following : 

"On  the  first  page  of  said  paper  there  was  a  printed  heading 
and  under  this  heading,  on  the  same  page,  were  written  all 
the  dispositive  clauses  of  said  will.  Immediately  following 
these  was  the  clause  nominating  an  executor  of  said  will,  the 
whole  of  which  latter  clause  was  also  written  upon  said  first 
page  except  the  words  'executor  be  not  required  to  give 
bond/  which,  for  want  of  space  on  said  first  page,  were  written 
at  the  top  of  the  second  page,  occupying  all  of  the  first  and  a 
part  of  the  second  line  on  said  second  page.  The  remainder 
of  said  second  page  was  entirely  blank,  and  the  third  page  was 

ioGen'1     Code,     §10505      (R.     S.  Y.   516:    In   re   Conway.    124   N.    Y. 

§5010.  455:  In  re  Whitney.  153  X.  Y.  259: 

it  Syllabus  in  Sears  v.   Sears,  77  In  re  Blair,  84  Hull,  581;    Seward 

0.  S.  104;  In  re  Matter  of  Andrews.  v.   Seward,   1   Duvall,   126;    Lime  v. 

62  X.  Y.    1:    Sisters,  etc.  v.  Kelly,  Bryer,  6  B.  C.  104. 
67  N.  Y.  409;   In  re  O'Neil,  01   N. 


§617 


MERWINE    ON    RIJ5AL    ACTIONS. 


722 


also  blank  clown  to  the  testimonium  clause,  a  space  of  about 
twenty-three  and  one-half  inches.  The  testatrix  signed  her 
name,  by  mark,  immediately  after  and  beneath  said  testimo- 
nium clause  on  the  blank  line  obviously  left  for  the  signature 
of  the  person  executing  such  will.  Then  follows  immediately, 
in  due  form,  the  attestation  clause  signed  by  two  witnesses." 

The  court  held  that  the  execution  of  this  will  was  within 
the  terms  of  the  statute.18 

Where,  in  the  trial  of  an  issue  in  the  action  to  contest  the 
validity  of  a  will,  the  original  will  was  in  evidence  and  showed 
the  body  of  it  to  be  written  on  horizontal  lines  of  several  pages 
of  foolscap  or  legal  cap  paper,  so  that  all  its  items  and  pro- 
visions were  in  consecutive  order  to  the  end  on  the  last  page 
and  under  which  the  testator's  signature  appeared,  and  it  also 
showed  that  there  was  vn'tten  in  the  margin  of  the  last  page 
to  the  left  of  and  separated  from  the  body  of  the  instrument, 
a  dispositive  clause,  extending  lengthwise  of  the  page  from  near 
the  bottom  to  near  the  top  thereof,  and  in  no  manner  connected 
with  the  body  of  the  instrument  by  any  words,  mark,  or 
character,  as  a  reference  to  indicate  where  the  marginal  matter 
was  to  b"  read  in  relation  to  the  other  provisions ;  and  it  was 
established  by  the  testimony  that  the  marginal  matter  was 
written'  after  all  the  other  provisions,  at  the  request  of  the 
testator,  and  before  he  attached  his  signature  under  the  body 
of  the  will,  it  was  held  that  such  will  was  not  signed  at  its 
end  as  required  by  statute,  and  it  was  invalid  for  that  reason.19 


Sec.  617.    The  acknowledgment  by  the  testator  and  the  attesta- 
tion of  the  will. 

The   statute   requires   that   the   will   must   be   attested   and 
subscribed   in   the   presence  of  the  testator,   by  two   or  more 


isMader  v.  Apple,  SO  O.  S.  <107: 
citing  and  commenting  mi  Underbill 
on  Wills.  Sec.  185;  Roach  on  Wills. 
See.  31;  Scars  v.  Hears.  77  O.  S. 
104.  A  will  may  be  partly  printed 
and  partly  in  writing.  Sears  v. 
Scars.  77   0.   S.    KM. 

'■•  Second  Syllabus,  in  Irwin  v. 
Jacques,  71  <>.  S.  ::!•<; :  Baker  v. 
Baker,  51  0.  S.  217;  Glaney  v. 
Glaney,  17  O.  S.  135;  Kyle  v. 
Feuchter,  56  0.  S.  424;  Lester,  etc. 
v.    Kelly,    <i7    X.    Y.    409;    Will    cf 


James  O'Neil,  91  N.  Y.  510;  Will 
of  James  Conway.  124  N.  Y.  455; 
Baker's  Appeal,  107  Pa.  St.  3811; 
Appeal  of  John  Weinland,  118  Pa. 
St.  37;  Andrew's  Will  (N.  Y.>.  56 
N.  E.  Pep.  529;  In  re  Walke,  110 
Cal.  37.  The  doctrine  <if  these  cases 
seems  to  be  thai  as  to  the  manner  of 
the  execution  of  a  will,  we  must 
look  to  the  intention  of  the  Legis- 
lature and  not  to  the  intention  of 
the  testator. 


723 


ACTION    TO    CONTEST    A    WILL. 


§618 


competent  witnesses  who  saw  the  testator  subscribe  or  heard 
him  acknowledge  the  same.-' 

This  does- not  require  the  witnesses  each  to  sign  at  the  same 
time  the  other  does.  Each  may  sign  it  at  different  times,  but 
all  of  them,  when  they  do  sign  as  witnesses,  must  see  the 
testator  sign  it  or  hear  him  acknowledge  the  same  to  be  his 
last  will  and  testament.21 

The  acknowledgment  of  the  will  may  be  by  signs  or  mo- 
tions.22 

Sec.  618.     The  manner  in  which  a  will  may  be  revoked. 

The  manner  in  which  a  will  may  be  revoked  is  fixed  and 
determined  by  statute.  This  statute  provides  that  a  will  can 
be  revoked  by  a  testator  tearing,  cancelling,  obliterating  or 
destroying  same  with  the  intention  of  revoking  it,  by  the  tes- 
tator himself,  or  by  some  person  in  his  presence,  or  by  his 
direction.2" 

In  a  late  case  in  the  Supreme  Court,  in  an  action  to  contest 
the  validity  of  the  will  which  had  been  admitted  to  the  probate, 
the  ground  of  contest  being  that  the  testator  in  his  lifetime 
had  destroyed  the  will  with  the  intention  of  revoking  it,  it 
was  held  that  "the  allegation  in  the  petition  that  the  will  was 
revoked  is  not  sustained  by  evidence  showing  that  the  testator 
removed  from  the  instrument  and  tore  one  of  its  several  pages, 
leaving  the  will  otherwise  intact  and  afterwards  evinced  an 
intention  to  p reserve  it."  24 

In  such  an  action,  any  evidence  is  competent  showing  the 
intent  of  the   testator  causing  the  page  to  be  removed,   and 


20  Gen']  Code.  §10505  (R.  S. 
I  5916). 

2i  Raudebaugh  v.  Shelley.  6  0.  S. 
.",07:  Estate  of  Nicholson,  49  W.  L. 
B.  37!);  Carpenter  v.  Denoon,  29  O. 
S.  379;  Feuchter  v.  Kyle,  56  0.  S. 
424. 

22  Haynes  v.  Haynes,  33  0.  S. 
598;  Raudebaugh  v.  Shelley.  6  0. 
S.  307;  Estate  of  Nicholson,  2  N. 
P.  X.  S.  189.  It  was  held  in  Trem- 
bly v.  Trembly.  4  0.  L.  R.  545. 
that  where  a  will  was  signed  l>v  an- 
other under  the  direction  of  a  tec- 
tator   that   such   signing  was   a  for- 


mal acknowledgment  of  the  signa- 
ture. "Where  the  onlv  knowledge 
the  witnesses  have  of  the  signing  is 
that  it  was  signed  in  their  own 
handwriting,  the  will  can  not  be 
probated."  Kuntz  v.  Boudendestle, 
Dayton.  224.  Gen']  Code.  §  10515 
(R.  S.  §  5925),  as  to  the  effect  of 
witnesses  being  a  devisee  or  legate* 
under  the  will,  is  not  applicable  to 
verbal  wills  Vroorran  v.  Powers, 
47   0.    S.    191. 

23  Gen'l     Code.     !•  105.""      (R.     S. 
■v  5953). 

24Coghlin  v.  Coghlin.  79  0.  S.  71. 


§§  619,620 


MERWINE    ON    REAL    ACTIONS. 


724 


showing  that  after  it  had  been  restored  the  testator  recorded 
the  instrument  as  his  will.25 

Sec.  619.     What  the  clerk  must  certify  to  the  probate  court. 

Upon  the  filing  of  the  petition,  the  clerk  is  required  by  law 
to  certify  that  fact  to  the  probate  court  in  which  the  will  is 
recorded,  and  the  probate  judge  is  required  to  proceed  as 
provided  in  Gen'l  Code  §  12081  (R.  S.  §  5860). 26 

Sec.  620.  Duty  of  the  probate  judge  on  notice  of  contest — « 
What  papers  to  be  sent  to  common  pleas,  and  what  return 
is  made  to  probate  court. 

Whenever  the  probate  court  receives  from  the  clerk  of  tli3 
court  of  common  pleas  a  certificate  that  a  petition  has  been 
filed  in  the  court  of  common  pleas  to  contest  the  validity  of 
any  Avill  admitted  to  record  or  recorded  in  the  probate  court, 
the  probate  court  must  transmit  forthwith  to  the  court  of 
common  pleas  the  will,  testimony,  and  all  papers  relating  there- 
to, with  a  copy  of  the  order  of  probate,  attaching  the  same 
together  and  certifying  the  same  under  the  seal  of  the  court ; 
and  a  copy  of  the  final  judgment  on  such  contest,  must  be 
certified  by  the  clerk  of  the  court  of  common  pleas  to  the 
probate  court ;  and  said  clerk  must  also  transmit  to  the  probate 


23  Coghlin  v.  Coghlin,  70  O.  S.  71; 
Behrens   v.   Behrens,   47    O.   S.   323. 

"In  general,  it  may  be  assumed 
that  a  will  is  kept  in  the  custody 
of  the  testator  himself,  or  under  his 
control,  to  be  changed,  modified  or 
revoked  according  to  his  good  pleas- 
xire.  If  at  his  decease  it  can  not  be 
found,  it  is  more  reasonable  to  pre- 
sume that  he  himself  has  destroyed 
his  will,  than  that  some  other  per- 
son has  committed  the  crime,  and 
incurred  the  penalty  of  secreting  or 
destroying   it.     *     *     * 

"But  while  the  declarations  of  the 
testator  may  bo  used  to  weaken  the 
presumption  that  he  1ms  destroyed 
'•is  will  with  the  intention  of  revok- 
ing it,  his  declarations  may  also  be 
received  as  evidence  to  strengthen 
and  for+ifv  the  presumption  that  he 
has  destroyed  liis  will  with  such  in- 


tention. Whether  it  be  the  making 
of  a  will  or  the  destroying  of  one, 
the  competency  of  the  testator's  dec- 
larations as  evidence  is  alike  in  each 
case,  and  for  the  same  reasons  ad- 
missible." Behrens  v.  Behrens,  47 
O.  S.  323;  Collagan  v.  Burns,  57 
Me.  465;  Keen  v.  Keen,  L.  R.,  3  P. 
&  D.  105;  Lawyer  v.  Smith,  8  Mich. 
412;  Patterson  v.  Hickey,  32  Ga. 
156;  Weeks  v.  McBeth,  14  Ala.  474; 
Smiley  v.  Gambill,  2  Head,  104; 
Reel  v.  Reel,  1  Hawks,  248;  Tynan 
v.  Baschal,  27  Tex.  286;  Youndt  v. 
Youndt,  3  Grant  Case,  140. 

20  See  ISTo.  450  for  form  for 
this  certificate.  See  No.  455  and 
following  for  forms  of  petition  and 
all  of  the  pleadings,  writs,  pro- 
cesses, certificates  and  orders  in  the 
action. 


725 


ACTION    TO    CONTEST    A    WILL. 


§§  621,622 


court  the  will  and  other  papers  transmitted  as  aforesaid  to  the 
common  pleas  and  the  same  must  be  deposited  and  remain  in 
the  probate  court.27 


Sec.  621.     The  manner  in  which  the  issue  is  made  up. 

The  statute  requires  that  the  issue  be  made  up,  either  in 
the  pleadings  or  by  an  order  on  the  journal,  whether  the 
writing  produced  is  the  last  will  or  codicil  of  the  testator,  or 
not,  which  shall  be  tried  by  a  jury,  and  the  verdict  therein 
shall  be  conclusive,  unless  a  new  trial  be  granted,  or  the  judg- 
ment be  reversed  or  vacated.28 

A  distinguished  jurist,  in  discussing  this  question  of  making 
up  an  issue  by  a  journal  entry,  said:  "As  showing  the  use- 
lessness  of  a  journal  entry  or  order  to  make  the  issue,  it  may 
be  suggested  that  this  practice  is  probably  a  survival  of  chan- 
cery practice  of  which  contest  of  wills  was  not  an  original 
part,  and  hence  the  chancellor's  right  to  summon  a  jury  to 
inform  his  conscience  did  not  obtain  because  his  conscience  was 
not  concerned  in  this  matter,  and  so  the  right  was  therefore 
given  him  to  order  the  issue  and  send  it  to  a  jury  for  trial,  all 
of  which  was  unnecessary  under  the  Code."  29 

The  manner  in  which  the  issues  in  a  will  contest  are  to 
be  made  up  is  fixed  and  determined  by  this  statute.  It  must 
be  made  up  either  by  the  pleadings  or  an  order  entered  on  the 
journal,  yet  whichever  mode  is  adopted,  the  issue  presented 
for  determination  must  be  the  same.30 

Sec.  622.     The  conduct  of  the  trial. 

The  party  sustaining  the  will  is  entitled  to  open  and  close 
the  evidence  and  argument;  he  must  offer  the  will  and  pro- 
bate, and  rest  his  case ;  the  opposite  party  is  required  to  offer 
his  evidence ;  the  party  sustaining  the  will  is  then  required  to 
offer  his  other  evidence ;  and  rebutting  evidence  may  be  offered 
as  in  other  cases.31 


=7Gen'l  Code.  §12194  (R.  S. 
§  5936).  See  also  Nos.  461  and  466 
for  forms  for  certificates  under  this 
section. 

ssGen'l  Code,  §12082  (R.  S. 
§5861).  See  No.  470  for  form  of 
the  issue  made  up  on  the  journal. 

29  Bates  Pleading,  Practice,  Par- 
ties and  Forms,  Vol.  3,  page  29G5. 


so  Stacy  v.  Cunningham.  69  0.  S. 
181;   Dew  v.  Reid,  52  O.  S.  519. 

siGen'l  Code,  §12085  (R.  S. 
§  5864)  ;  but  see  Green  v.  Green.  5 
O.  278;  Raudebaugh  v.  Shelly,  6  O. 
S.  307:  Brown  v.  Griffith,  11  O.  S. 
329;  Banning  v.  Banning.  12  0.  S. 
437;  Runvan  v.  Price,  15  0.  S.  1; 
Mears  v.  Mears,  15  0.  S.  90. 


§§  62:>,G24  MERWINK    ON    REAL    ACTIONS.  726 

Sec.  623.  The  action  to  be  tried  by  a  jury — The  court  may 
direct  a  verdict. 

The  court  has  the  power,  in  an  action  to  contest  a  will,  where 
the  plaintiff's  evidence  fails  to  make  out  a  case  in  law  to  set 
aside  the  will,  to  direct  the  jury  to  return  a  verdict  sustaining 
the  will.  This  law,  requiring  that  a  jury,  in  actions  of  this 
kind,  pass  on  the  validity  or  invalidity  of  the  will,  is  imper- 
ative, and  the  law  was  so  made  to  prevent  consent  decrees  in 
chancery  by  the  parties.32 

It  was  said  of  the  functions  of  a  court  and  jury  in  the  action 
to  contest  a  will,  that — 

"The  statute  provides  the  order  in  which  the  testimony  shall 
he  introduced,  gives  legal  effect  to  the  will  and  order  of 
prohate,  and  requires  the  case  to  be  submitted  to  the  jury.  In 
other  respects  the  trial  is  to  be  conducted  as  other  jury  trials 
are  conducted,  and  it  is  the  duty  of  the  court  in  that  ease,  as 
in  other  cases,  to  give  proper  instructions  to  the  jury."33 

In  one  case  in  this  State,  whera,  on  the  trial  of  an  action 
to  contest  a  will,  wherein  it  appeared  on  the  face  of  the  will 
that  it  was  not  signed  at  the  end  thereof,  as  required  by  the 
statute,  it  was  held  not  error  for  the  trial  judge  to  direct  a 
verdict  that  the  paper  writing  was  not  a  valid  will.34 

Sec.  624.     The  effect  of  the  order  of  probate  on  the  issue. 

On  the  trial  of  the  issue  to  contest  a  will  in  the  common 
pleas  court,  the  order  of  the  probate  court  is  prima  facie 
evidence  of  the  due  attestation,  execution  and  validity  of  the 
will  and  codicil.35 

Where  a  spoliated  will  has  been  probated,  this  order  is 
prima  facie  evidence  of  due  execution  thereof,  and  the  burden 
of  proof  will  be  on  the  contestants  to  invalidate  such  will."'" 

The  original  will,  when  not  lost,  should  be  introduced  at, 
the  trial.  The  copy  attached  to  the  petition  will  not  be  suffi- 
cient/'7 

82  Wagner  v.  Zicgler.  44  O.  S.  68;  oven    though    all    the    parties    agree. 

Walker  v.  Walker,  14  0.  S.  158.  Ibid. 

S3  Wagner  v.  Ziegler,  44  0.  S.  60.  34  Sears  v.  Sears.  77  0.  S.  104. 

Tt    is   error   for  the   court,   without  sb  Gen'l     Code,     §12083      ( R.     S. 

the    intervention    of   a    .jury,   to   set  §5682). 

aside  a  will.     Holt  v.   Lamb,   17  0.  seBehrens   v.    Behrens,   47    O.   S. 

S.  374;  Cooch  v.  Cooch,  IS  0.  146;  323. 

87  Haynes  v.  Haynes,  33  0.  S.  508. 


727 


ACTION    TO    CONTEST    A    WILL 


$§  625,626 


During  the  course  of  the  trial  it  is  error  for  the  court  to 
instruct  the  jury  that  a  fair  preponderance  of  the  evidence 
against  the  will  is  sufficient.  The  instruction  on  that  point 
should  he  a  preponderance  of  the  evidence.38 

Where  it  appears  on  the  face  of  the  will  that  it  has  not 
been  signed  at  the  end,  or  not  witnessed  according  to  the  stat- 
ute, the  probate  of  it  does  not  make  the  introduction  of  the  will 
;it  the  trial  01  the  action  t<»  contest  it,  a  prima  facie  case.39 

Sec.  625.     When  the  testimony  upon  the  probate  of  the  will 
becomes  competent. 

A  certified  copy  of  the  testimony  of  such  of  the  witnesses 
examined  upon  the  probate  as  are  out  of  the  jurisdiction  of 
the  court,  dead,  or  have  become  incompetent  since  the  probate, 
can  be  introduced  as  evidence  on  the  trial. +> 


Sec.  626.     Who  may  contest  a  will  or  codicil. 

A  person  interested  in  a  will  or  codicil  admitted  to  probate 
in  the  probate  court  or  court  of  common  pleas,  may  contest  the 
validity  thereof  in  a  civil  action  in  the  court  of  common  pleas 
of  the  county  in  which  probate  was  had.41 

Where  a  will  is  valid  when  it  is  executed  and  is  afterwards 
revoked  by  the  testator  himself,  in  any  of  the  statutory  modes,42 
or  revoked  by  operation  of  law,43  and  it  should,  never- 
theless, be  admitted  to  probate  and  record,  any  person  inter- 
ested in  having  it  set  aside  as  invalid,  may  contest  its  validity 
by  an  action  under  the  statute  for  that  purpose.44 


88  Russell  v.  Russell,  6  C.  C.  294. 

so  Sears  v.  Sears,  77  O.  S.   129. 

■toGen'l  Code,  §12084  (R.  S. 
§  5863 ) . 

"Gen'l  Code.  §12075  (R.  S. 
§  5858)  ;  see  Taylor  v.  Taylor,  5  N. 
P.  N.  S.  323;  Rockwell  v.  Beaney. 
5  N.  P.  X.  S.  580:  Moves  v.  Neil- 
son,  7  X.  P.  007.  Widow  not  es- 
topped by  election.  Carder  v.  Cone, 
16  O.   S.  354. 

*z  Gen/1  Code,  §10555  (R.  S. 
§  5953). 

*3Gen'l  Code,  §10557  (R.  S. 
§5995). 


■"Meyers  v.  Barrow.  3  C.  C.  92. 
"A  judgment  creditor  of  an  heir 
who  has  obtained  a  lien  by  levy  on 
property,  which  in  the  absence  of  a 
will  would  be  the  property  of  the 
debtor  heir  by  descent  is  a  person 
interested  in  a  will  or  codicil,  with- 
in the  meaning  of  Gen'l  Code, 
§12079  (R.  S.  §5858),  and 
therefore  has  legal  capacity  to  pros- 
ecute an  action  to  contest  the  valid- 
ity of  an  alleged  will  disposing  of 
such  property  to  a  person  other 
than  such  heir."  Bloor  v.  Piatt,  78 
O.  S.  46. 


§§  627,628 


MERWINE    ON    REAL    ACTIONS. 


728 


Sec.  627.     The  necessary  parties  to  the  action. 

All  the  devisees,  legatees  and  heirs  of  the  testator,  and  other 
interested  persons,  including  the  executor  or  administrator, 
must  be  made  parties  to  the  action.45 

The  executor,  having  been  made  a  party,  is  not  bound  to 
assume  the  burden  of  the  defense  of  a  contest  of  the  will  by 
the  heirs  at  law.  The  executor  can  place  this  burden  upon  the 
legatees  and  devisees  in  the  will.46 

The  devisees  and  legatees  are  indispensable  parties,  and 
the  omission  to  make  a  legatee  party  to  such  suit  is  error  for 
which  the  decree  setting  aside  the  will,  will  be  reversed.47 

It  is  not  considered  a  defect  of  parties,  by  failre  to  make 
the  executor,  or  administrator,  a  party  to  an  action  to  contest 
the  validity  of  a  will.48 


Sec.  628.     Limitation  of  the  action  to  contest  a  will. 

An  action  to  contest  a  will  or  codicil  must  be  brought  within 
two  years  after  the  same  has  been  admitted  to  probate,  but 
persons  within  the  age  of  minority,  of  unsound  mind,  or  im- 
prisoned, may  bring  such  action  within  two  years  after  such 
disability  has  been  removed  49 

It  was  held  that  in  a  proceeding  of  this  character,  where 
the  action  is  commenced  within  the  statutory  period,  although 
only  a  part  of  the  persons  interested  in  the  contest  are  made 
parties  thereto,  the  right  of  action  is  saved  as  to  all  who  are 


45Gen'l  Code,  §12080  (R.  S. 
§5859). 

46  Andrews,  etc.  v.  Andrews,  7  0. 
S.  143;  as  to  executor's  duty  as  to 
counsel  fee  see  In  re  Will  Contest, 
7  N.  P.  288.  As  to  who  shall  pay 
counsel  fees  in  sustaining  a  will, 
see  In  re  Counsel  Fees,  7  N.  P.  624. 
See  also  counsel  fees  in  case  of  a 
compromise,  Seeger's  Estate,  7  N. 
P.  207.  As  to  when  a  receiver  can 
be  appointed  in  a  will  contest,  see 
Lanker  v.  Mattison,  20  C.  C.  229. 
As  to  counsel  fees  where  executor 
defends  and  sustains  a  will,  see 
Union  v.  Smith,  4  C.  C.  N.  S.  237. 

•»"  Reformed,  etc.  v.  Nelson,  35  O. 
S.  038:  Holt  v.  Lamb,  17  O.  S.  375; 
Banning  v.  Kerby,  7  A.  L.  R.  602. 


In  a  will  contest  case  after  the 
petition  has  been  filed  and  a  defend- 
ant files  a  cross-petition  asking  af- 
firmative relief,  the  plaintiff  can  not 
defeat  the  action  by  dismissing  his 
petition.  Bradford  v.  Andrews,  20 
O.  S.  209. 

48  Gurley  v.  Armentrout,  6  C.  C. 
N.   S.    156. 

49Gen'l  Code,  §12087  (R.  S. 
§5866).  As  to  disability  of  in- 
fancy, see  Powell  v.  Kochler,  52  O. 
S.  103.  As  to  when  suit  is  deemed 
commenced,  see  2  N.  P.  X.  S.  577; 
see  also  under  this  statute  Bradford 
v.  Andrews,  20  O.  S.  208;  Meese 
v.  Keefe,  10  O.  362. 


729  ACTION  TO  CONTEST  A  WILL.  §  629 

ultimately  made  parties,  notwithstanding  some  of  them  are  not 
brought  into  the  case  until  after  the  period  of  limitation  has 
expired.50 

Sec.  629.  Error,  not  appeal,  lies  in  the  action  to  contest  a  will. 
No  appeal  can  be  taken  from  the  judgment  of  the  common 
pleas  court  to  the  circuit  court  in  cases  to  contest  a  will,  but 
the  right  to  prosecute  proceedings  in  error  in  such  cases  shall 
be  the  same  as  provided  in  other  cases  brought  in  the  common 
pleas  court.51 

so  Bradford  v.  Andrews,  20  0.   S.  statute    Wasson    v.    Heffner,    13    0. 

208.  S.  573;   Murna  v.  Murna,  23  0.  S. 

siGen'l     Code,     §6424      (R.     S.  602;    McMaster  v.   Keller,   1    C.   C. 

§5896).      But     see    under    former  476. 


FORMS. 


PROCEDURE  IN  THE  ACTION  TO  CONTEST  A  WILL. 


FORMS 

455.  The  petition  to  contest  a  will. 

45G.  The  precipe. 

457.  The   summons    in   the   action. 

458.  The    sheriff's    return    of    the 

summons. 

459.  Certificate     to      the     probate 

court  by  clerk  on  the  filing 
of  the  petition  to  contest 
will. 

460.  Journal   entry   and  certificate 

of  probate  court  in  the  ac- 
tion to  contest  a  will. 

461.  Certificate     to     the     court     of 

common  pleas  in  the  action 
to  contest  a  will. 

462.  The    joint    answer    of    the   de- 

fendants  in   the  action. 

463.  The   verdict  of   the   jury   sus- 

taining the  will. 

464.  Motion  for  new   trial. 

465.  The    judgment    of    the    court 

overruling  the  motion  for 
a  new  trial  and  sustaining 
til.'    will. 

466.  The  certificate  of  the  clerk  of 

the  court  of  common  pleas, 
with  copy  of  final  judg- 
ment,  to  the  probate  court, 
after  final  judgment  is  ren- 
dered in  the  action  to  con- 
test the  validity  of  a  will. 


FORMS. 

467.  The    application    for    the    ap- 

pointment of  a  guardian 
ad  litem  in  tin-  action  to 
contest  a  will. 

468.  The    order    of    the    court    ap- 

pointing a  guardian  ad 
litem  for  minor  defendants. 

469.  The    answer    of    guardian    ad 

litem  for  minor  defendants 
in  the  action  to  contest  a 
will. 

470.  The  order  entered  on  the  jour- 

nal making  up  the  issue, 
when  the  issue  is  not  made 
by  the  pleadings. 

471.  Another    form   for   a    petition. 

472.  Another  form   for  the  answer 

of  defendants. 

473.  Another    form    for    a    petition 

to  contest  will  for  the  rea- 
son that  the  alleged  testa- 
tor was  not  of  a  sound  and 
disposing  mind  and  mem- 
ory, and  was  under  undue 
influence  and  restraint,  i:i 
attempting  to  make  the 
same. 

474.  Petition   to   contest   a   nuncu- 

pative will. 


730 


731  FORMS. 

No.  455.     The  petition  to  contest  a  will. 

Court  ok  Common  Pleas,  ; County,  Ohio. 

F.  F.  M.,  C.  J.  M.,  F.  A.  B.,  J.  W.  B.  and  W.  B., 

as  Guardian  of  M.  L.  B., 
Plaintiffs, 

vs.  No.   » 

Rev.  M.  M.  M.,  as  Pastor  of  St.  Joseph's  Cathe- 
dral   Congregation ;    M.    M.    M.,    a    minor    16 

years  of  age;   W.  J.  B.,  Council  No. 

;    Knights   of    Columbus,   a    Corporation; 

E.  M.,  a  minor  14  years  of  age;  C.  M..  a 
minor  12  years  of  age;  K.  F.,  Rev.  R.  J.  M.,  as 
President  of  St.  Patrick's  College;  Rev.  M. 
S.  H.,  as  Pastor  of  St.  Patrick's  Church;  Rev. 
S.  W.,  as  Pastor  of  St.  John  the  Evangelist 
Church;  Rev.  F,  W.  H..  as  Pastor  of  Holy 
Rosary  Congregation;  The  Little  Sisters  of 
the  Poor  of  St.  Francis,  a  Corporation;  Rev. 
C.  R.  R.,  as  Pastor  of  Holy  Cross  Congrega- 
tion; Rev.  J.  C.  G.,  as  Chaplain  and  Di- 
rector of  The  New  Foundling  Asylum;  The 
Ohio  Trust  Company,  a  Corporation;  The 
House  of  Good  Shepherd,  a  Corporation;  The 
Young  Men's  Christian  Association,  a  Cor- 
poration, and  J.  M.  H.,  as  executor  of  the 
last  will  and  testament  of  F.  A.  M.,  deceased, 
Defendants. 

Petition. 

The  plaintiffs  say  that  on  the  day  of  ,  10 ,  F.  A. 

M.,  unmarried,  and  without  issue,  died  leaving  these  plaintiffs  as  his  only 
heirs  and  next  of  kin  in  the  following  relationship: 

The  said  F.  F.  M.  and  C.  J.  M.  are  brothers  of  said  decedent;  and  the 
said  F.  A.  B.,  J.  W.  B.  and  M.  L.  B.  are  nephews  and  niece,  respectively,  of 
said  decedent,  being  the  only  heirs  at  law  of  C.  B.,  deceased,  who  was  a 
sister  of  said  decedent. 

The  said  W.  B.  is  the  duly  appointed,  qualified  and  acting  guardian  of 
M.  L.  B.,  one  of  the  plaintiffs  herein. 

The  said  J.  M.  H.  is  the  duly  appointed,  qualified  and  acting  executor 
of  the  alleged  last  will  and  testament  of  F.  A.  M.,  deceased. 

These  plaintiffs  further  say  that  the  defendant.  M.  M.  M.,  is  the  pastor 
of  St.  Joseph's  Cathedral  Congregation;  that  the  defendants,  M.  M..  E.  M. 
and  C.  M..  are  minors  of  the  ages,  respectively,  16.  14  and  12  years,  and 
that  they  reside  and  make  their  home  with  their  parents,  to-wit:   F.  F.  M. 

and  E.  A.  M.,  at  Street,  in  the  city  of  .  Ohio:   that  the 

defendants,  the  Council  No.  ,  Knights  of  Columbus.  The 

Little  Sisters  of  the  Poor  of  St.  Francis,  The  Ohio  Trust  Company,  The 
House  of  Good  Shepherd   and   the   Young  Men's  Christian   Association  of 


MERWINE    ON    REAL    ACTIONS.  732 

,  Ohio,  are  corporations  existing  under  the  laws  of  the  State  of 

Ohio,  and  doing  business  in  the  city  of  ,  Ohio.     The  said  R.  J.  M. 

is  the  president  of  St.  Patrick's  College.  The  said  M.  L.  H.  is  the  pastor 
of  St.  Patrick's  Church.  The  said  S.  W.  is  pastor  of  St.  John  the  Evangel- 
ist Church.  The  said  F.  W.  H.  is  the  pastor  of  the  Holy  Rosary  Congre- 
gation. The  said  C.  R.  R.  is  the  pastor  of  Holy  Cross  Congregation.  The 
said  J.  C.  G.  is  chaplain  and  director  of  The  New  Foundling  Asylum.  The 
defendant,  K.  F.,  is  the  mother  of  said  F.  A.  M. 

Plaintiffs  further  say  that  they  are  the  same  persons  who  are  named 
in  the  alleged  will  of  the  said  F.  A.  M.,  deceased,  a  copy  of  which  alleged 

will  is  hereto  attached  and  marked  "Will;"  that  on  the  day  of 

,  19 ,  a  certain   paper  writing  purporting  to  be  the  last  will 

and  testament  of  said  F.  A.  M.,  bearing  date  of  the day  of , 

19 ,  was  presented  to  the  Probate  Court  of  County,  Ohio,  for 

probate   and   the   same   was   probated   on   the   day   of   , 

19 ;   that  said  paper  writing  remains  in  said  court  as  a   part  of  the 

records  thereof,  copy  of  which  is  hereto  annexed  marked  "Will"  as  an 
exhibit,  and  that  letters  testamentary  were  issued  thereon  by  said  Probate 
Court  to  the  said  J.  M.  H.,  defendant,  who  is  now  acting  as  executor  of 
said  estate. 

By  the  terms  of  said  paper  writing  the  defendants  and  these  plaintiffs 
are  named  as  several  devisees  of  said  F.  A.  M.,  deceased,  and  that  plaintiffs 
and  said  defendants  are  the  only  persons  in  any  wise  interested  in  the 
estate  of  said  decedent,  either  as  heirs  and  next  of  kin  of  said  decedent, 
or  as  beneficiaries  under  the  aforesaid  alleged  will. 

Plaintiffs  aver  that  said  paper  writing  is  not  the  last  will  and  testament 
of  said  F.  A.  M.,  for  said  F.  A.  M.  at  the  date  of  said  paper  writing,  was 
not  of  sound  mind  and  disposing  memory,  but  by  reason  of  a  progressive 
disease  with  which  the  said  decedent  was  then  afflicted,  he  was  mentally 
incapacitated  from  making  a  will  or  a  proper  distribution  of  his  property, 
and  was  persuaded  and  coerced  into  signing  said  paper  by  undue  influence 
of  certain  officials  and  dignitaries  of  the  church  and  others  conspiring 
with  said  officials  and  dignitaries,  and  that  by  the  actions  of  said  persons 
aforesaid  they  influenced  and  prejudiced  the  weak  mind  of  the  said  F.  A.  M. 

Plaintiffs  say  that  said  alleged  will  was  not  executed  as  required  by  law: 
that  the  said  paper  writing  and  the  bequests  therein  were  procured  and 
made  by  the  exercise  on  the  part  of  said  officials  and  dignitaries,  and 
others,  of  undue  influence  over  the  mind  of  said  F.  A.  M.,  so  that  the  paper 
writing  does  not,  because  of  such  undue  influence,  and  because  of  his  im- 
paired mentality,  as  aforesaid,  speak  of  his  wish  and  will. 

Plaintiffs   therefore  pray   that   the   issue  be   made   up    and   tried    as   to 

whether  said  paper  writing  is  the  last  will  and  testament  of  said  F.  A.  M.; 

that  said  will  be  set  aside;  that  the  same  be  found  and  declared  not  the  last 

will  and  testament  of  said  F.  A.  M.,  and  that  the  defendants  be  required  to 

answer  the  above  complaint,  and  for  such  further  orders  and  other   relief 

as  may  be  authorized  by  law.  ■  _       > 

Attorneys  for  Plaintiffs. 

(This  petition  should  be  verified  by  all  of  the  plaintiffs.) 
(Here  attach  to  the  petition  a  copy  of  the  will.) 


733  FORMS. 

No.  45G     The  precipe. 

To  the  Clerk:    Issue  summons  to  the  sheriff  of  County,  Ohio, 

returnable  according  to  law,  for  the  within  named  defendants',  The  Young 
Men's  Christian  Association,  The  Ohio  Trust  Company,  M.  M.  M.,  a  minor 
16  years  of  age,  E.  M.,  a  minor  14  years  of  age,  and  C.  M.,  a  minor  12 
years  of  age,  all  of  said  minors  residing  with  their  parents,  F.  F.  M.    and 

A.  E.  M.,  at  Number  Street,  Ohio.     Endorse  the  said 

summons  "An  action  to  set  aside  the  will  of  F*  A.  M." 


Attorneys  for  Plaintiffs. 

No.  457.     The  summons. 

The  State  of  Ohio,  County,  ss.: 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  commanded  to  notify  The  Young  Men's  Christian  Association, 
The  Ohio  Trust  Company,  M.  M.  M.,  a  minor  16  years  of  age;  E.  M.,  a 
minor  14  years  of  age;   C.  M.,  a  minor  12  years  of  age,  all  of  said  minors 

residing   with   their    parents,    F.    F.   M.    and    A.    E.    M„    at    No.    ■ — — - 

Street,  ,  Ohio,  that  they  have  been  sued  by  F.  F.  M.,  C.  J.  M., 

F.  A.  B.,  J.  W.  B.  and  W.  B.,  as  Guardian  of  M.  L.  B.  in  the  Court  of 

Common  Pleas  of  County,  Ohio,  and  that  unless  they  answer  by 

the  day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and ,  the  petition  of  said  plaintiffs  against  them,  filed  in 

the  clerk's  office  of  said  County,  such  petition  will  be  taken  as  true  and 
judgment   rendered  accordingly. 

You  will   take   due   return   of   this   summons   on   the   day   of 

■ ,  in  the  year  of  our  Lord  one  thousand  nine  hundred  and  . 

Witness  my   hand  and   the   seal  of   said   Court  this   day   of 

,  in  the  year  of  our  Lord  one  thousand  nine  hundred  and . 


-,  Clerk  of  the  Court  of  Common  Pleas. 


No.  458.     The  sheriff's  return  of  said  summons. 

The  State  of  Ohio,  County,  ss. : 

Beceived  this  writ  on  the  day  of ,  in  the  year  of  our 

Lord  one  thousand  nine  hundred  and  ,  at  o'clock  M., 

and  pursuant  to  its  command,  on  the day  of ,  in  the  year 

of  our  Lord  one  thousand  nine  hundred  and  ,  I  served  the  same 

by  personally  handing  a  true  and  duly  certified  copy  of  this  writ  with  all 
the  indorsements  thereon,  to  each  of  the  following  of  the  within  named 
defendants:  M.  M.  M.,  a  minor  16  years  of  age;  E.  M.,  a  minor  14  years 
of  age,  anu  C.  M.,  a  minor  12  years  of  age.  Also  the  same  day  I  served 
the  same  by  leaving  a  true  and  duly  certified  copy  of  this  writ  with  all 
the  indorsements  thereon  at  the  usual  place  of  residence  of  F.  F.  M., 
father  of  each  of  the  said  M.  M.  M.,  a  minor  16  years  of  age;  E.  M.,  a 
minor  14  years  of  age,  and  C.  M.,  a  minor  12  years  of  age,  not  being  able 
to  find  after  due  and   diligent   search,   a  guardian  for  either  of  the  said 


MERWINE    ON    REAL    ACTIONS.  734 

M.  M.,  E.  M.  and  C.  M.,  minors  aforesaid  within  my  bailiwick.  Also  on 
the  same  day  1  served  the  within  named  defendant,  The  Young  Men's  Chris- 
tian Association,  by  personally  handing  a  true  and  duly  certified  copy  of  this 

writ  with  all  the  indorsements  thereon  to ,  Secretary  of  the  said 

The  Young  Men's  Christian  Association,  the  President,  Yice-President  or 
other  chief  officer  of  the  said  The  Young  Men's  Christian  Association  not 
found  within  my  bailiwick.  Also  on  the  same  day  I  served  the  within 
named  defendant.  The  Ohio  Trust  Company,  by  personally  handing  a  true 
and  duly  certified  copy  of  this  writ  with  all  the  indorsements  thereon  to 
J.  W.  B.j  President  of  the  said  The  Ohio  Trust  Company. 

G.  J.  K.,  Sheriff. 

No.  459.     The  certificate  to  the  probate  court  by  clerk,  on  the 
filing  of  the  ^etition  to  contest  will. 

The  State  of  Ohio. County,  ss. : 

To  the  Honorable  the  Probate  Court  of  County,  Greeting: 

Notice  is  hereby  given  that  on  the  day  of  ,   19 , 

in  the  Court  of  Common  Pleas  of  said  — — — -  County,  F.  F.  M.,  and 
others,  filed  their  certain  petition  against  Rev.  M.  M.  M.,  and  others,  the 

same  being  cause  number  ,  in  said  court,  and  which  is  still  there 

pending,  to  contest  the  validity  of  the  will  of  F.  A.  M.,  deceased,  lately 
probated  in  your  court  and  admitted  to  record  therein. 

You  will,  therefore,  as  required  by  law  forthwith  transmit  to  our  said 
Court  of  Common  Pleas,  the  said  will,  the  testimony  adduced  on  the 
probate  thereof,  and  all  papers  relating  thereto,  with  a  copy  of  the  order 
of  probate,  attaching  the  same  together  and  certifying  the  same  under 
t!ie   seal   of  your  honorable  court. 

In  Testimony  Whereof  I  have  hereunto  signed  my  name  and  affixed 
the  seal   of   said  Court  on  the  day   of ,   19 . 


( 'Jerk. 

No.  460.     Journal  entry  and  certificate  of  probate  court  on  con- 
test of  will. 

In  the  Matter  of  the  Will  of 

F.   A.   M.,   deceased.  .   10 . 

Journal   Entry. 

Order  to  Transmit  Will,  etc..  to  the  Court  of  Common  Pleas. 

This  day  the  court  received  from  the  Clerk  of  the  Court  of  Common 
Plea.s  of  this  county  a  certificate  that  a  petition  has  been  filed  in  said  Court 
of  Common  Pleas  to  contest  the  validity  of  the  will  of  F.  A.  M.,  deceased, 
admitted  to  record  and  recorded  in  this  court;  it  is  therefore  ordered  that 
the  wili.  testimony  and  all  papers  relating  thereto,  with  a  copy  of  the  order 
'  of  probate,  attached  together  and  certified  under  the  seal  of  this  court, 
be  forthwith  transmitted  to  said  Court  of  Common  Pleas. 

,  Probate  Judge. 


735  FORMS. 

The  State  of  Ohio,  County,  ss. : 

I,  Judge  and   ex  officio  Clrrk   of   the  Probate  Court    within 

and  for  said  county,  and  in  whose  custody  the  files,  journals  and  records 
of  said  court  are  required  by  the  laws  of  the  State  of  Ohio  to  he  kept, 
do  hereby  certify  that  the  foregoing  entry  is  taken  and  copied  from  tin- 
journal  of  the  proceedings  of  said  court;  that  the  same  has  been  compared 
by  me  with  the  original  entry  on  said  journal,  and  that  it  is  a  true  and 
correct  copy  thereof. 

1,\  Testimony  Whebeof,  T  have  hereunto  subscribed  my  name  officially, 

and  affixed  the  seal  of  said  court,  at  ,  Ohio,  this  — day  of 

,    19 .  

Judge  ami  ex  officio  Cleric  of  said  Probate  Court. 

No.  461.     Certificate  to  court  of  common  pleas  on  contest  of 
will. 

To  the  Court  of  Common  Pleas  of  said  county,  I,  Judge  and 

ex  officio  clerk  of  the  Probate  Court  of  said  county,  do  hereby  certify  that 
the  papers  hereto  attached,  numbered  from  1  to  ,  are  the  will,  testi- 
mony and  all  the  papers  relating  to  the  will  of  F.  A.  M.,  deceased,  with  a 
certified  copy  of  the  order  of  probate  thereof. 

In  Testimony  Whereof,  I   hereunto  subscribe  my  name  officially  and 

a  (fix  the  seal  of  said  court  at  Ohio,  this day  of  August, 

1907.  

Judge  and   ex   officio   Clerk   of  Probate   Court. 

No.  462.     The  joint  answer  of  defendants  in  the  action. 

Now  come  the  defendants.  Rev.  M.  M.  M.,  as  pastor  of  St.  Joseph's 
Cathedral  Congregation;  Council  Xo.  .  Knights  of  Co- 
lumbus, a  corporation;  Rev.  R.  J.  M.,  as  President  of  St.  Patrick's  College; 
Rev.  M.  L.  EL,  as  pastor  of  St.  Patrick's  Church;  Rev.  S.  \\\.  as  pastor 
of  St.  John  the  Evangelist  Church;  Rev.  F.  W.  H.,  as  pastor  of  Holy 
Rosary  Congregation;  The  Little  Sisters  of  the  Poor  of  St.  Francis,  a 
corporation;  Rev.  C.  R.  R.,  as  pastor  of  Holy  Cross  Congregation;  Rev.  J. 
C.  G.,  as  chaplain  and  director  of  The  New  Foundling  Asylum:  The  Ohio 
Trust  Company,  a  corporation;  The  House  of  Good  Shepherd,  a  corporation ; 
The  Young  Glen's  Christian  Association,  a  corporation,  and  J.  M.  H.,  as 
executor  of  the  last  will  and  testament  of  F.  A.  M.,  deceased,  and  for  their 

answer  to  the  petition  admit,  that  on  the  day  of  ,  190 , 

F.  A.  M.  died  unmarried,  and  without  issue,  leaving  the  plaintiffs  as  his 
only  heirs  and  next  of  kin,  in  the  relationship  as  set  forth  in  the  petition; 
that  the  plaintiff,  W.  P>.,  is  the  duly  appointed,  qualified  and  acting  guar- 
dian of  M.  L.  B.,  one  of  the  plaintiffs;  that  the  defendant,  J.  M.  H.,  is  the 
duly  appointed,  qualified  and  acting  executor  of  the  last  will  and  testament 
of  said  F.  A.  M.,  deceased:  that  the  defendants  are  the  same  persons  who 
are  mentioned  in  the  said  last  will  and  testament  of  said  F.  A.  M.,  de- 
ceased, as  devisees  and  legatees;  that  the  copy  of  the  said  last  will  and 
testament  attached  to  the  petition  marked  "Will"  is  a  true  copy  thereof; 


MERWINE    ON    REAL    ACTIONS.  736 

that   on   the  day   of  ,   190 ,   the   said  last   will   and 

testament  of  said  F.  A.  M.,  deceased,  was  by  the  Probate  Court  of  

County,  Ohio,  duly  admitted  to  probate;  that  letters  testamentary  thereon 
were  issued  by  said  Probate  Court;  and  that  the  plaintiffs  and  the  de- 
fendants are  the  only  persons  in  anywise  interested  in  the  estate  of  said 
decedent,  either  as  heirs  and  next  of  kin,  or  as  beneficiaries  under  the  said 
last  will  and  testament. 

Defendants  deny  each  and  every  other  allegation  contained  in  said  peti- 
tion not  herein  specifically  admitted,  and  aver  that  said  last  will  and  testa- 
ment is  the  valid  last  will  and  testament  of  said  F.  A.  M.,  deceased. 

Wherefore,  The  defendants  pray  that  said  last  will  and  testament  may 
be  found  and  declared  to  be  the  valid  last  will  and  testament  of  said  F. 
A.  M.,  deceased,  and  that  the  petition  may  be  dismissed,  and  for  all  other 
proper  orders  and  relief. 

Attorneys  for  Defendants. 
(The  answer  is  verified  as  in  other  cases.) 


No.  463.     The  verdict  of  the  jury  sustaining  the  will. 

(Same  caption  as  in  the  petition.) 

We,  the  Jury,  being  duly  impaneled  and  sworn,  do  find  that  the  paper 
writing  described  in  the  petition  and  produced  at  the  trial  of  this  case, 
purporting  to  be  the  last  will  and  testament  of  F.  A.  M.,  is  the  last  will 
and  testament  of  said  F.  A.  M.,  deceased. 

— ,  Foreman. 

No.  464.     Motion  for  new  trial. 

(Same  caption  as  in  the  petition.) 

Now  come  the  plaintiffs  and  move  the  court  to  set  aside  the  verdict 
herein,  finding  that  the  paper  writing  described  in  the  petition,  and  pro- 
duced and  offered  in  evidence  at  the  trial  of  this  case,  purporting  to  be 
the  last  will  and  testament  of  F.  A.  M.,  deceased,  is  the  last  will  and 
testament  of  F.  A.  M.,  deceased,  ano*  further  move  the  court  to  set  aside 
its  judgment  confirming  said  verdict  and  grant  the  plaintiffs  a  new  trial 
herein,  for  the  reasons  following,  to-wit: 

First. — Because  said  verdict  was  and  is  contrary  to  law. 

Second. — Because  the  verdict  is  contrary  to  the  manifest  weight  of  the 

evidence. 

Third. — For  other  errors  occurring  during  the#trial  of  the  above  cause, 
which  errors  appear  upon  the  record. 

Attorneys  for  Plaintiffs. 


737  FORMS. 

No.  465.     The  judgment  of  the  court  overruling  the  motion  for 
a  new  trial  and  sustaining  said  will. 

(Same  caption  as  in  the  petition.) 

Entry. 

The    parties  hy   their   attorneys  came  this  day   and   the   issues   having 

been  made  up  by  the  pleadings  herein,  a   jury  was  called,  to-wit:  -, 

,  etc..    wIki.    being   duly    impaneled   and    sworn    according  to    law, 

rendered  a  verdict  finding  that  the  paper  writing  described  in  the  petition, 
and  produced  and  ottered  in  evidence  at  the  trial  of  this  case,  purporting 
to  be  the  last  will  and  testament  of  F.  A.  M.,  deceased,  is  the  last  will 
and  testament  of  said  F.  A.  M.,  deceased. 

It  is  therefore  considered  and  adjudged  by  the  court  that  said  paper 
writing  produced  at  the  trial  and  ottered  in  evidence,  purporting  to  he 
the  last  will  and  testament  of  F.  A.  M.,  deceased,  is  the  last  will  and 
testament  of  said  F.  A.  M.,  deceased. 

And  this  cause  coming  on  further  to  be  heard  by  the  court  upon  the 
motion  of  the  plaintiffs  filed  herein  to  set  aside  the  verdict  and  for  a  new 
trial,  was  submitted  to  the  court  and  the  court  upon  consideration  does 
find  said  motion  not  well  taken  and  ought  to  be  overruled.  It  is  there- 
fore considered  and  adjudged  by  the  court  that  said  motion  of  the  plain- 
tiffs to  set  aside  the  verdict  heretofore  rendered  herein  and  for  a  new 
trial  be  and  the  same  hereby  is  overruled. 


No.  466.  The  certificate  of  the  clerk  of  the  court  of  common 
pleas,  with  copy  of  final  judgment,  to  the  probate  court, 
after  final  judgment  is  rendered  in  the  action  to  contest 
the  validity  of  a  will. 

The  State  of  Ohio, County,  ss.: 

To  the  Honorable  the  Probate  Court  of County,  Oreetinq: 

There  is  herewith   transmitted  to  your   said  Probate  Court   a  certified 

copy     of     the     final     judgment      in     the     action     No.     ,      lately 

pending  in  our  said  Court  of  Common  Pleas,  to  contest  the  validity  of 
the  will  of  F.  A.  M.,  deceased,  in  the  action  of  F.  F.  M.,  and  others,  against 
Rev.  M.  M.  M.,  and  others  and  also  the  will  and  other  papers  heretofore 
transmitted  by  your  said  court  to  our  .-aid  Court  of  Common  Pleas. 

Said  final  judgment  is  in  the  words  and  the  figures  following,  to-wit: 
(Here  copy  the  judgment  at  No.  herein.) 

In  Testimony  Whereof,  T  have  hereunto  affixed  my  hand  and  the  seal 

of  said  court  on  this  day  of  ,  190 . 

,  Clerk. 


MERWINE    ON    REAL    ACTIONS.  738 

No.  467.     The  application  for  the  appointment  of  a  guardian 
ad  litem  in  the  action  to  contest  a  will. 

(Same  caption  as  in  the  petition.) 

Now  come  and  ,   minor  defendants    over  th&  age  of 

fourteen  years,  and  make  application  for  the   appointment   of  a  guardian 

ad  litem  for  them  in  this  action,  and  request  that  be  appointed 

as  such  guardian  ad  litem. 


No.  468.     The  order  of  the  court  appointing  a  guardian  ad 
litem  for  minor  defendants. 

(Same  caption  as  in  the  petition.) 

EiVTRY. 

Now  come ami  .  minor  defendants  herein,  over  the  age 

of  fourteen  years,  having  been  duly  served  with  summons  herein,  and  make 
application  for  the  appointment  of  a  guardian  ad  litem  for  them  in  this 
action;   and  it  having  been  made  further  to  appear  to  the  court  that  the 

defendants,  and  ,  are  minors  under  the  age  of  fourteen 

vears    and    have  been   dulv   and   legally    served   with    summons    herein,   on 

motion    of    ,    a    friend    for    said    minor    defendants    and 

,   it   is  ordered  by   said  court   that   said  be   and   she   is 

hereby  appointed  guardian  (id  litem  herein  for  said  and  

defendants.      And  the   said   court   further   finding  that   said   and 

have  requested  that  be  appointed  as  guardian  for  them 

also,  on  their  application,  it  is  ordered  by  said  court  that  said  be 

and  she  is  hereby  appointed  guardian  ad  litem   for  said  minor  defendants 

and  .     And  now   comes  the  said and   accepts 

said  appointment  as  such  guardian  ad  litem  for  all  said  minor  defendants 
and  files  herein  forthwith  her  answer  herein  as  such  guardian  ad  litem. 


No.  469.     The  answer  of  guardian  ad  litem  for  minor  defend- 
ants in  the  action  to  contest  a  will. 

(Same  caption  as  in  the  petition.) 

Answer  of  Guardian  Ad  Litem  for  Minor  Defendants. 
Now  come  the  defendants,  ,  ,  .  and 


by  ,  their  duly  appointed  guardian  ad  litem  for  this  suit,  and  for 

answer  to  plaintiffs'  petition  herein,  deny  all  the  allegations  therein  con- 
tained in  any  way  prejudicial  to  said  minor  defendants,  and  further  say 
that  they  are  of  tender  years,  and  not  acquainted  with  the  law  in  such 
cases,  and  therefore  ask  th>'  court  to  protect  their  rights  in  this  cause,  and 
for  such  relief  as  may  be  just. 


739  FORMS. 

No.  470.     The  order  entered  on  the  journal  making  up  the 
issue,  when  the  issue  is  not  made  by  the  pleadings. 

(Same  caption  as  in  the  petition.) 

Entry. 

In  this  case  it  is  ordered  by  the  court  that  this  cause  be  submitted  to 
and  tried  by  a  jury  in  accordance  with  law,  and  that  the  following  issue  be 
so  submitted  t<»  and  tried  by  a  jury,  to-wit:  "Is  the  writing  produced  the 
last  will  [or  codicil,  as  the  case  may  be]  of  the  said  F.  A.  M.,  deceased, 
or  not  ?" 

No.  471.     Another  form  for  a  petition. 

S.  W.  and  W.  Z., 

Plaintiffs, 

vs.  No.  . 

C.  Z..  M.  Z.,  R.  Z.,  M.  Z.,  F.  Z., 

L.  V..  M.  Z..  E.  Z.,  W.  S., 
C.  S.,  Sr.,  C.  S.,  Jr.,  W.  C, 
L.  C.  E.  P.,  as  Executor  of 
F.  W.  Z.,  deceased, 

Defendants. 

Petition. 

Plaintiffs  say  that  on  or  about  the  day  of  ,  19 


one  F.  W.  Z.,  then  a  resident  of ,  in  said  county  of  .  died 

testate,  leaving  a  last  will  and  testament  of  that  date,  which  will  was,  on 

the  day  of  .  19 ,  duly  probated  in  the  probate  court 

of  county,  Ohio,  a  copy  of  said  will  is  hereto  attached,  marked 

"A,''  and  made  a  part  hereof.  Said  F.  W.  Z.,  died  leaving  the  following 
named  persons,  his  widow  and  heirs  at  law.  to-wit:  C.  Z.,  widow,  residing  at 

.  County.  Ohio.  M.  Z.,  R.  Z..  M.  Z..  F.  Z.,  heirs  of  H.  Z., 

deceased,  residing  in  the  State  of  .  L.  I).,  wife  of  M.  V.,  residing 

in  County,  Ohio,  M.  Z.  and  E.  Z..  of  the  same  place. 

The  following  named  persons  are  the  legatees  of  said  will,  to-wit:  W.  S., 
C.  S.,  Sr..  C.  S..  Jr.,  W.  C,  and  L.  C.  all  residing  in  County,  Ohio. 

Said  E.  P..  of  County,  Ohio,  is  the  duly  qualified  and  acting 

executor  of  said  deceased,  F.  W.  Z. 

Said  F.  W.  Z.  died  seized  in  fee  of  considerable  real  estate  and  the 
owner  of  some  personal  estate,  all  of  which  is  described  in  said  pretended 
will. 

Said  plaintiffs  further  represent  that  said  will  so  probated  as  aforesaid 
is  not  the  last  will  and  testament  of  said  deceased,  because  at  the  time  of 
the  execution  thereof,  said  F.  W.  Z.  was  not  of  sound  mind  and  disposing 
memory  and  did  not  have  sufficient  mental  capacity  to  make  a  will. 

Said  plaintiffs  further  say  that  said  executor,  notwithstanding  the  facts 
aforesaid,  is  threatening  to  settle  and  distribute  the  estate  of  said  deceased 
in  accordance  with  the  terms  of  said  will  as  aforesaid  probated. 

Plaintiffs  therefore  pray  that  said  pretended  will  and  the  probate  thereof 


MERWINE    ON    REAL    ACTIONS.  740 

may  be  set   aside  and  held   for   naught,  and   that  until   the  final   hearing 
thereof   said  executor  may  be  restrained   from   proceeding  under  said   will 

and  for  all  proper  relief.  , 

Attorneys  for  Plaintiff  a. 
(This   petition   is  verified  as   in  other  cases  and   a   copy   of    the   will   is 
attached    thereto. ) 

No.  472.     Another  form  for  the  answer  of  defendants. 

(Same  caption  as  in  the  petition  foregoing.) 

Defendants  admit  each  and  every  allegation  set  forth  in  plaintiffs'  peti- 
tion except  the  allegation  "That  said  will,  as  probated,  is  not  the  last  will 
and  testament  of  said  decedent,  because  at  the  time  of  the  execution  thereof 
said  F.  W.  Z.  was  not  of  sound  mind  and  disposing  memory  and  did  not 
have  sufficient  mental  capacity  to  make  a  will,"  which  allegation  the  said 
defendants  deny. 

The  above  named  defendants,  further  answering  said  petition,  aver  t,,0  + 
said  will,  as  probated,  is  the  last  will  and  testament  of  the  said  F.  W.  Z., 
and  that  said  F.  W.  Z.,  at  the  time  of  the  execution  thereof,  was  of  sound 
mind  and  disposing  memory,  and  had  sufficient  mental  capacity  to  make  and 
execute  a  will. 

This  answer  is  verified  as  in  other  actions. 

[Note. — Both  taken  from  Wagner  v.  Ziegler,  44  0.  S.  60.] 

No.  473.  Petition  to  contest  will  for  the  reason  that  the  al- 
leged testator  was  not  of  a  sound  and  disposing  mind  and 
memory,  and  was  under  undue  influence  and  restraint,  in 
attempting  to  make  the  same. 

Court  of  Common  Pleas,  County,  Ohio. 

,  Plaintiff, 


vs. 

,  and  ,  and  f- ,  as 

executor  of ,  deceased,  Defendant. 

Petition. 

On  or  about  the  day  of  ,   10 ,  the  said  • 

died,   and    said   has    been    duly    appointed,    has    qualified    anil    is 

acting  as  the  executor  of  said  deceased. 

A  certain   pYiper  writing,  purporting  to  be  the  last  will  and  testament 

of  said  ,  deceased,  and  bearing  date  of  ,  ,  10 , 

was  probated  in  the  probate  court  of  said  County.  Ohio,  on  the 

day  of  ,   10 — .     A  certified  copy  of  such   said  purported 

last  will  and  testament,  with  the  order  of  probate  thereof  in  the  said  pro- 
hate  court  attached  thereto,  is  filed  herewith,  and  made  a  part  hereof, 
marked  Fxliibit  "A." 

The    said   defendant.    ,   and    the   said   ,   widow    of   said 

.  deceased,  are  the  sole  legatees  and  devisees  of  said  purported  will, 


741 


FOKMS. 


and   the   plaintiff  and    said   are   the   sole   heirs   at   law   of   aaid 

decedent. 

Said   paper   writing,   purporting  to  be  the  last  will   and  testament  of 

said — ,   is  not   his  valid   last  will  and  testament,   for  that,  at   the 

time  of  the  said  alleged  making  of  said  paper  writing,  the  said  alleged 
testator  was  not  of  sound  and  disposing  mind  and  memory,  and  was  under 
undue  influence  and  restraint,  in  so  attempting  to  make  the  same. 

Plaintiff  says  further,  that  (here  should  be  alleged  the  facts  constitut- 
ing undue  influence  and  facts  showing  that  the  alleged  testator  did  not 
have  a  sound  and  disposing  mind  and  memory). 

Wherefore  plaintiff  prays  that  said  order  of  probate  be  set  aside  and 
held    for    naught,    and    that    said    alleged,  last    will    and    testment   of    said 

,  deceased,  be  adjudged  to  be  not  the  last  will  and  testament  of 

said  deceased;  for  costs,  and  all  relief  to  which  the  plaintiff  may  be 
entitled  in  the  premises.   ' 


Attorney  for  Plaintiff. 
(This  petition  is  verified  as  in  other  cases.) 


No.  474.     Petition  to  contest  a  nuncupative  will. 

On  or  about  the  day  of  ,   19 ,  the  said 


died,   and   said   has    been    duly   appointed,    has  qualified,   and    is 

acting  as  executor  of  said  ,  deceased. 

A    certain    paper    writing,    purporting    to    be    the    nuncupative    will    of 

said   ,   deceased,    bearing   date   of   the of   

19 ,  was  probated  in  the  Probate  Court  of  said County,  Ohio, 

on  the  day  of  ,   19 .     A  duly  certified  copy  of  such 

said  purported  nuncupative  will,  with  the  order  .of  probate  thereof  in  the 
said  probate  court  is  attached  hereto,  filed  herewith  and  made  a  part 
hereof,  and  marked  Exhibit  "A." 

Said    defendant,    ,    and    the    said    — ,    widow    of    said 

,  deceased,  are  the  sole  legatees  and  devisees  of  said  purported  will, 

and    the    plaintiff    and    said   are    the   sole    heirs    at    law    of   said 

decedent. 

Said    paper    writing,    purporting    to    be    the    nuncupative    will    of    said 

,   is   not   his   valid  last   will   and   testament.      Said  alleged   verbal 

will   was  not  made  by  said  .   in   his   last   sickness,  or  reduced  to 

writing  and   subscribed  by   two   competent   disinterested   witnesses,   one   of 

said  witnesses,  ,  being  at  the  time  insane,  and  the  other,  »—— , 

one  of  the  beneficiaries  of  its  provisions;  nor  was  it  reduced  to  writing  or 
so  subscribed  by  said  purporting  witnesses  within  ten  days  after  the 
.speaking  of  the  supposed  testamentary  words,  which  were  substantially 
different    from    the    wording,    language    and    provisions    of    said    paper    so 

probated,  as   aforesaid,   as  the  last   will   and  testament   of   said   , 

deceased,  nor  did  said  ,  call  upon  any  person  present,  at  the  time 

of  the  alleged  speaking  of  the  said  supposed  testamentary  words,  to  bear 
testimony  to  such  disposition  as  his  will. 


MERWINE    ON    REAL    ACTIONS.  742 

Wherefore  plaintiff  asks   that   said  order   of   probate  be   set  aside  and 
held  for  naught,  and  that  such  alleged  verbal  last  will  and  testament  of 

said   ,   deceased,   be   adjudged  to  be  not   the   valid   last   will   and 

testament  of  said  deceased;   for  costs  and  all  relief  to  which  the  plaintiff 
may  be  entitled  in  the  premises. 


(This  petition  is  verified  as  in  other  cases.) 

[NOTE. — The  two  foregoing  forms  are  adapted  from  Yaple's  Code  Plead- 
ings; Subject:  Proceedings  in  the  Contest  of  Wills. j 


INDEX. 


[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

A 

Action — 

Consequential  injury  to  land  transitory,   10. 
Mandatory  injunction  to  abate  nuisance,  transitory,  10. 
Manner  in  which  action  to  sell  real  estate  is  begun,  4. 
ro  recover  real  estate  must  be  brought  in  county  where  land  is,  7. 
To  partition  must  be  where  land  is,  7. 

To  sell  real  estate  under  mortgage  lien  or  other  charge,  7. 
Local  and  transitory,  10. 
Local  action  denned,  10. 
Transitory  action  denned,  10. 
By  which  real  estate  is  sold  in  attachment,  141. 
By  which  guardian  sells  ward's  real  estate,  245. 
By  which  an  entailed  estate  is  sold.  100. 
By  which  an  assignee  sells  real  estate,  201. 
By  which  a  receiver  sells  real  estate,  288. 

By  which  an  administrator  or  executor  sells  real  estate,  206. 
By  which  real  estate  is  sold  in  partition,  295. 
By  which   real   estate   of   a   church   or   other    religious   organization    is 

sold,  347. 
By  which  a  mortgage  is  foreclosed,  303. 
By  which  a  mechanic's  lien  is  foreclosed,  373. 
By  which  a  tax  lien  is  foreclosed,  397. 
By  which  dower  is  assigned,  452. 
By  which  real  estate  is  condemned,  502. 
By  which  street  or  alley  is  vacated,  562. 
By  which  title  is  quieted,  566. 
By  which  real  estate  is  recovered,  579. 
By  which  a  will   is  set  aside  or  sustained,  611. 
By  which  decedent's  land  contracts   are   performed,  605. 

Accounting — 

Of  rents  and  profits  in  partition,  329. 


Administrators — 

May  not  bid  at  own  sales,  111. 


743 


744  INDEX. 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise   to  Sections.] 

Administrator's    sale    of    real    estate — 

Notice  of  proceedings,  200. 

Care  of  counsel  in,  200. 

Defects  of  title  by,  200. 

Former   proceedings   in,  200 

Power  statutory,  200. 

When  application  to  be  made,  207. 

Common  pleas  court,  207. 

When  application  should  be  made  in  probate  court,  207. 

Power  of  probate  courts  as  to,  208. 

When  application  to  be  made,  209. 

Made  for  payment  of  legacy,  when,  210. 

Limitation  as  to  the  action,  211. 

No  limitation  as  to  claim  once  allowed,  211,  211  note. 

Right  to  sell  exists  as  long  as  claims  unpaid.  211,  211  note. 

The  estate  or  interest  that  may  be  sold,  212. 

Estates  fraudulently  conveyed  may  be  sold,  21:;. 

Duty  as  to  fraudulent  conveyances,  214. 

May  set  aside  deed  and  ask  for  sale  in  one  action,  214. 

Debts  authorizing  sale,  215. 

Administrators  dc  bonis  non  to  complete  proceedings,  210. 

Petition  in  the  action,  and  what  it  must  contain,  217. 

Who  should  be  parties  to  the  action,  217. 

The  title  to  purchaser.  217. 

Duty  as  to  lienholders,  217. 

Marshaling  of  assets,  218. 

Sale  prevented,  how,  219. 

Bond  for,  219. 

Widow  may  give  bond  to  prevent  sale,  219. 

Service  on  defendants,  221. 

Procedure  in  the  action,  220. 

Summons  or  notice  may  be  served  by  plaintiff,  221. 

Guardians  ad  litem  no  power  to  consent  to  sale,  222. 

None  to  be  appointed  when  prayer  of  petition  not  contested,  222. 

Sale  to  pay  debts  only,  223. 

Terms  of  sale,  223. 

Jury  may  be  had,  223. 

Sale  by  heir  of  his  interest,  effect  of,  224. 

Estate  encumbered  by  dower,  225. 

Whole  estate  to  be  sold,  when,  220. 

Bond  additional,  220. 

Costs  in  the  action,  22S. 

Appraisement,  229. 

Appraisement  when  no  dower  assigned,  229. 

Appraisement.     See  Chapter  II. 

Appraisement  when  dower  and  homestead  to  be  assigned,  230. 


index.  745 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Administrators    sale    or    real     estate— Continued. 

When  lands  in  more  than  one  county,  23ft. 

Law  as  to  homestead  in.  230. 

Application  for  homestead,  230. 

Dower  charge  on  land.  231. 

Vacancy  in  appraisers.  232. 

Appraiser's  duty.  232. 

Appraiser's  fees.  232. 

Notice  of  sale,  requirement  as  to,  234. 

Notice  of  sale  in  foreign  language,  235. 

Amount  for  which  real  estate  may  lie  sold,  236. 

Public  sale,  230. 

Private  sale,  230. 

Parcels  may  be  sold,  236. 

Return  of  sale,  238. 

Confirmation  of  sale,  238. 

Sale  may  be  for  cash,  238. 

Distribution  of  notes,  238. 

Deed  to  the  premises,  230. 

Deed  as  evidence,  239. 

Proceeds  of  sale  applied,  how,  240. 

Will  may  not  require  action  to  sell,  241. 

Foreign  administrator  may  sell,  242. 

Manner  of  his   sale,   242. 

Bond  of  foreign  administrator.  243.  244. 

Surplus  money  from  sale  to  be  regarded  as  land,  244. 

Administrators — Forms 

Petition    in    common    pleas    to    sell    lands    conveyed    by    decedent    in 

fraud  of  creditors,  Xo.  04. 
Precipe,  Xo.  05. 

Summons  and  sheriff's  return  on,  Xos.  06,  07. 
Summons  and  return  from  another  county,  Xos.  03,  99. 
Answer    and   cross-petition,    setting   up    building  ^and"  loan    mortgage 

Xo.  100.  "  ' 

For  another  answer  in  the  action,  Xo.  102. 

Of  entry  appointing  guardian  ml  litem,  No.    103, 

Of  answer  of  guardian  ad  litem,  No.  103. 

Of  decree  setting  aside  conveyance  and  ordering  sale  of  real  estate  in 

No.   105. 
Of  order  of  appraisement.  Xo.  106. 

Of  administrator's  return  of  his  proceedings  in.  No.   107. 
Of  the  oath  of  appraisers,  Xo.  108. 

Of  entry   confirming   appraisement   and    ordering   sale   of    real    estate 
No.   109. 

Of  order  of  sale  from  clerk  to  administrator,  Xo.  110. 
Of  administrator's  notice  of  public  sale,  Xo.  111. 


746  INDEX. 

[Figures  preceded  bv  "No."  refer  to  Forms;  otherwise:    to  Sections.] 

Administrators — Forms — Continued. 

Of  proof  of  publication  of  sale.  No.    111. 

Of  administrator's  return  of  his  proceedings,  No.  113. 

Of  confirmation  of  sale,  order  for  deed  and  for  distribution,  No.  114. 

Of  administrator's  deed  in  such  case,  No.  115. 

Adultery — 

Bars  dower,  when,  471. 

Advancements — 

In  partition,  337. 

Hotch  potch,  337. 

liy  estate,  338. 

Greater  or  less  than  share  in  partition,  rule,  339. 

When  wholly  real  or  personal  property,  340. 

Value  expressed  in  deed,  341. 

Various  instances  of,  341    note. 

Affidavits — 

In  attachment,   form,  No.   49. 

For  service  by  publication  in  attachment,  form  No.  53. 

In  support  of  motion  to  discharge  attachment,  178. 

Affidavit  in  attachment,  158. 

May  be  made  by  whom,  159  note. 

Form  for  in  application  to  have  decedent's  real  estate  subdivided   in 

building  lots,  No.   147. 
Form  for  in  service  by  publication,  No.  155. 
Form  for  in  motion  to  set  aside  appraisement.  No.  159. 
Form  for  by  assignee  to  sell  real  estate  at  private  sale.  No.  211. 
Form  for,  by  guardian  to  sell  real  estate  at  private  sale.  No.  188. 
Guardian's  affidavit  of  such  sale.  No.  lf)0. 

The  affidavit  for  service  by  publication  in  partition  proceedings,  No.  293. 
Affidavit  in  proof  of  insanity  of  a  defendant.  Xo.  311. 
Of  citizens  as  to  sale  of  real  estate  in  which  an  insane  wife  has  dower. 

No.  384. 
For  service  by  publication  in  the  action  to  quiet  title,  No.  429. 

Agent — 

To  pay  tax,  when,  400. 

Alimony — 

Lien  of  alimony  judgment,  94. 


INDEX.  747 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Alley— 

Vacation  of  in  city,  village  or  hamlet,  562. 

Reverts  to  owner,  when,  503. 

Petition  for  and  procedure  in,  504. 

Not  to  he  closed  until  damages  paid,  505. 

Alley — Forms    for — 

Petition  for.  No,  424. 
Publication  of  legal  notice,  No.  425. 
Proof  of  publication,  No.  426. 
Order  and  decree  vacating,  No.  427. 

Amercement — 

Of   sheriff  for  failure  to   perform  duties  under  executions  or  sale  of 

real  estate,  140. 

Answers — Forms  for — 

In  cognovit,  No.  2. 

In  action  to  set  aside  deed,  and  for  marshaling  liens,  No.  25. 

Answer    and    cross-petition    in    action    on   judgment,    and   to    marshal 

liens.  No.  26. 
Setting  up  life  estate  in  action,  No.  38. 
Setting  up  mortgage  lien  on  real  estate,  No.  39. 
Of  judgment  debtor,  No.  39. 
Of  defendant   in  attachment  suit,  No.  59. 
In  attachment,  No.  59. 
In  sale  of  an  entailed  estate,  No.  85. 
In  sale  of  an  entailed  estate  of  trustee,  No.  80. 

Of  guardian  ml  litem  by  an  administrator  to  pay  debts.  Nos.  104,  144. 
In  action  to  set  aside  fraudulent  deed,  Nos.  25,  26, 
In  action  to  sell  real  estate  under  foreign  levy — Setting  up  life  estate, 

No.  38. 
Setting  up  mortgage.  No.  40. 
Setting  up  building  and  loan  mortgage.  No.  100. 
Answer  generally,  No.  102. 

Of  widow,  asking  for  an  assignment  of  dower.  No.  117. 
Of  widow,  consenting  to  sale,  waiver  of  dower  by    inch's  and   hounds, 

and  asking  to  be  endowed  out  of  proceeds  of  sale.  No.   140. 
Trustee  for  insane  defendant,  Nos.   145.   196,  313. 
Disclaiming  interest   in  real   estate   in   controversy.   No.    170. 
Of  widow,  setting  up  dower.  Nos.   194.   1°7. 
Of  wife,  in  an  action  by  assignee,  to  sell  r°al  esfate    Xo.  204. 
Of  assignor,  in  assignee's  sale  of  real  estate.  No.  207. 
Setting  up  mortgage  in  assignee's  sale  of  real  estate,  No.  208. 
Of  guardian  for  infant  in  partition.  No.  260. 
Of  widow  in  partition,  No.  262. 
In  partition.  No.  281. 


748  INDEX. 

[Figures  preceded  by  "No."'   refer  to  Forma:  otherwise  to  Sections.] 

Answers — Forms  for — Continual. 

Ill    foreclosure    of    mechanic's    lien,   No.   331. 

Guardian   ad   litem    in    sale   of    real    estate    in    which    insane   wife   has 

dower,  No.  381. 
In  condemnation  proceedings,  No.  393. 

In  action  by  administrator  to  sell  lands  to  pay  debts,  No.  102. 
Of  guardian  ad  litem  in  assignment  of  dower,  No.  309. 
Of  defendants  in  ejectment,  No.  437. 

Of  defendants  in  completion  of  defendant's  land  contract,  No.  449. 
Of  widow  in  completion  of  land  contract.  No.  450. 
In  partition,  No.  281. 
In  cross-petition,  No.  281. 
In  setting  up  mortgage  on  estate.  No.  282. 
Widow  setting  up  dower  in  partition,  No.  262. 
Of  guardian  for  an  infant  in  partition,  No.  260. 
Of  guardian  ad  litem  for  infant  in  partition,  No.  265. 

Answer    to    petition    in    ejectment — 

Statute  of  limitations  in  ejectment,  582. 
Equitable  title  and  right   under  possession,  582. 

Answers    and    cross-petitions — Forms    for — 

To  set  aside  fraudulent  deed,  No.  46. 
Of  trustee  setting  up  a  mortgage  lien.  No.  209. 
Setting  up  mortgage  claim  in  partition,  No.  282. 
In  an  action  to  foreclose  mechanic's  lien,  No.  331. 

Appeal — 

Condemnation  proceedings  in,  518. 
In  partition.  346. 

Appraisement — 

T5eal  estate  under  execution,  103. 

To  be  made,  how,  103. 

Form  of.  No.  8. 

Appraisers  can  not  purchase,  104. 

Must  be  upon  actual  view,  105. 

Not  sufficient  to  have  seen  property  at  other  times,  105. 

Interior  of  building  must  be  inspected  by  appraisers,  105. 

Form  of  motion  to  set  aside.  No.   158. 

Form  for  order  setting  aside  and  ordering  new,  No.  160. 

Form  for  order  coni^  for  new  appraisement,  No.  161. 

Form    for  order  court    for   new   appraisement    after  having    been    twice 

offered  for  sale.  No.  161. 
Form  for  order  of  court,  fixing  price  at  which  real  estate  may  be  sold, 

No.  162. 


l.NDKX.  749 

[Figures  preceded  l>v  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Appraisement — Continued. 

Parol  evidence  to  show  mistake  in.  No.  106. 

Incumbrance  not  deducted  in,  No.   H'7. 

Crops  not  included  in,  lu7. 

Must  be  made  under  oath,  107. 

Copy  must  be  filed  with  clerk,  107. 

Objection  to,  must  be  made  before  confirmation,   1<I7. 

W'ben  real  estate  may  be  sold  without,   ins. 

New  appraisements  for  sale   real    estate   may    l>e   made,    when,    132. 

Lands  must  be  appraised  by  freeholders.   103. 

Upon  actual  view,  105. 

Appraisers  can  not  be  purchasers,  104. 

Parol  evidence  to  show  mistake  in,  107. 

Real  estate  may  be  sold  without  appraisement,  108. 

Sale  may  not  be  for  less  than  two-thirds  of,  110. 

New  appraisement  may  be  made,  when,  132,  133. 

Form   for   appraisement   in   sale   of   real   estate   under    vendi   exponas, 

No.  8. 
Form  for  appraisement  and  oath  of  appraisers   in  sale  of  real  estate 

under  attachment  proceedings,  No.  67. 
In   sale  of   real  estate  by  an  administrator   to   pay    decedent's    debts, 

229,  230. 
Forms   for   appraisement,   order   for   appraisement,   oath    of  appraisers 

and   confirmation    of    appraisement    in    the   action    to    pay    debts, 

Nos.  106,  108,  109,  122,  124,  125. 
In  guardian's  sale  of  real  estate,  256. 
Order  for  guardian's  sale  of  real  estate,  Nos.  171,  172. 
Confirmation  of  guardian's  sale  of  real  estate,  No.  173. 
Substitution  of  appraiser  in  guardian's  sale  of  real  estate.  No.   195. 
In  an  assignment  for  benefit  of  creditors,  271. 
Application  for  appointment  of  appraisers  by  receiver.  No.  236 
Receiver's  report  of  appraisement,  No.  237. 
Appraiser's   report    in    receivership — Their   oath,    and    confirmation    of, 

Nos.  237.  238,  239,  240. 
In  partition  cases,  316. 

Election  of  plaintiff  to  take  at  appraisement  in  partition.  No.  27o. 
Report   of  .  in   foreclosure   of   mortgage — Appointment    and    oath,    Nos. 

316.  317. 
In  foreclosure  of  mechanic's  lien,  Nos.  337.  338. 

In  foreclosure  of  tax  lien — Appointment,  oath.  Nos.   ■">.">:?.  354.  355, 
When  court  may  fix  price  at  which  real  estate  may  be  sold.   132. 
New  appraisement  and  terms  of  sale  of  mortgaged   premises,   133. 
When    sale   may  be   made    one-third    cash,    one-third   nine    months    and 

one-third  eighteen  months,   133. 
Form  where  real  estate  sold  under  execution    No.  8. 
Form  for  oath  of  appraisers.  No.  8. 
Form  in  attachment  proceedings,  No.  <i7. 
Form  in  sale  of  an  entailed  estate,  No.  75. 


750  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Assignee — 

See  subject,  "Assignments." 

See  "Procedure  in  Sale  of  Real  Estate  for  Benefit  of  Creditors." 

Assignment — 

Proceedings  by  assignee  for  sale  of  real  estate,  261  to  287. 

Bankruptcy  in,  261. 

Deed  of  assignment,  execution,  262. 

Acceptance  of,  262. 

Title  of  assignee  as  to  real  estate,  262. 

Who  may  make  assignment,  264. 

Bond  in,  264. 

Assignment  operates  from,  when,  265. 

Resignation  of,  266. 

Creditors  may  select  assignee,  267. 

Removal  of  assignee,  268. 

Bond  in  case  of  removal,  268. 

Powers  and  duties  of  new  trustee,  269. 

Legal  effect  of  new  appointment,  270. 

Notice  in  case  of  new  appointment,  271. 

Real  estate  in  another  county,  272. 

Inventory  in,  272. 

Appraisement,  272. 
Sale,  public,  272. 

Sale,  private,  272. 

Property  exempt,  273. 

Assignee's  duty  as  to  real  estate,  274. 

Petition  need  not  be  filed,  when,  275. 

Petition  must  be  filed,  when,  275. 

Petition  must  be  filed  in  what  court,  276. 

Jurisdiction,  276  note. 

A  proceeding  in  rem,  276  note. 

Sale  of  by  assignee,  277. 

Parties  to  procedure  for  sale,  277. 

Notice  of  sale,  278. 

Amount  for  which  sale  may  be  made,  278. 

Court  may  fix  amount  for  which  sale  may  be  made,  279. 

When  sale  made,  279. 

Manner   of  sale,  280. 

Private  sale,  280. 

Public   sale,   281. 

Contracts — Enforcement  of,  281. 

Dower  in  sale  of  real  estate,  282. 

Sale  of  mortgaged  property,  282,  283. 

Liens  paid  in,  284. 

Dower,  284. 

Homestead,  284. 


INDEX.  751 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Assignment — Continued. 

Completion  of  real  contracts.  284. 

Proceeds  of  >ale.  284. 

Release  of  mortgage  liens,  285. 

Town  lots — Laying  out,  286. 

Confirmation  of  sale,  287. 

Order  for  deed.  287. 

Deferred  payments.  287. 

Mortgage  for  deferred  payments  in.  287. 

Assignment — Forms    for — 

In  sale  of  real  estate  by  an  assignee  for  benefit  of  creditors,  Xos.  -'00 

to  222. 
For  deed  of  assignment.  No.  200. 
For  acceptance.  No.  200. 
For  petition.  No.  202. 
For  precipe  for  summons.  No.  203. 
For     answer  of  wife.  No.  204. 
For  answer  of  assignor.  Xo.  205. 
For  summons   in.  No.   2<)ii. 
F'or  sheriff's  release.  No.  207. 
For  note  and  mortgage.  Xo.  20S. 
For  decree  of  sale,  Xo.  209. 
For  affidavit  for  private  sale.  No.  211. 
For  order  to  sell  at.  No.  212. 
For  assignee's  return.  Xos.  214,  215. 
For  confirmation    private  sale,  Xo.  216. 
For  deed  to  purchasers  at  private  sale,  No.  217. 
For  order  to  sell   at  auction.   Xo.   218. 
For  report  of  assignee.  No.  210. 
For     legal  notice,  No.  220. 

For  confirming  sale  at  public  auction.  No.   221. 
For  deed  at  public  auction.  No.  222. 

Attachment — 

See    subject,    "Forms." 

Subject  of  141  to  189.  inclusive. 

Genera]  principles.  141. 

Purely  statutory.   141. 

Clear  case  necessary.  141. 

Auxiliary  remedy.  142. 

Functions  of  writ.  142. 

The  action  deemed  commenced,   when.    143. 

Clerk  authorized  to  issue  writ  of.  when.  144. 

Cross-petition  entitled  to  writ.  144. 

Jurisdiction,  how  secured,  145. 


752  INDEX. 

[Figures  preceded  by  "No."  refer  to   Forms;  c*herwise  t>«  Sections.] 

Attachment — Continued. 

Summons  as  to  non-resident  in,  J  15. 

Service  by  publication,  147,  14i». 

Affidavit  for  service  by,   14S. 

When  service  by  publication  complete,  L51. 

Personal  service  out  of  State,  152. 

Grounds  for,  152. 

Foreign  corporation,  153. 

Non-resident  of  State,   154. 

Meaning  of  term  •'resident,*'   154. 

Absconding    with    intent    to    defraud.     155. 

Fraudulent   disposition   of   property.    156. 

What  is  not  fraudulent  disposition  of  property,   156. 

Personal  obligation,  157. 

Fraudulent   obligation,    157. 

Requisites  of  affidavit,  158. 

Filing  of  affidavit  is  jurisdictional.   159. 

In  what  actions  the  writ  may  issue,  160. 

Bond  required,  162. 

The  order  of,  163. 

Its  command  and  to  whom  directed,   163. 

May  issue  to  different  counties,  163. 

When   returnable,   164. 

Order  of   execution  of,  165. 

Manner  in  which  order  of,  executed,  166. 

To  whom  property  to  be  delivered,   167. 

Several  may  be  made  by  same  officer.   168. 

When  other  attachments  may  be  had,   169. 

Officer's  return  of  writ,  170. 

Property  bound  from  what  time.   17i>. 

How  discharged,   170. 

Bond  in  the  action  for  causing  death,  171. 

Bond  in  vacation,  172. 

Effect  of  judgment  in,  173. 

Proceedings  after  judgment,  174. 

Priority,  on  sale,  174. 

Reference  may  be  had,  when,  174. 

Effect  of  death  of  defendant.   176. 

Additional  bond,  177. 

Motion  to  discharge  attachment.    17S. 

Error  proceedings  in,  170. 

Bond  in  error  proceedings,  180. 

Personal  representative  may  prosecute  error  in,  when,  181. 

Limitation  in  error  proceedings,  181. 

Before  debt  due,  182. 

By  whom  granted,  182. 

By  court  or  judge,  182. 


INDEX.  7."):5 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Attachment — ( 'on  t  in  tied. 

Action  may  be  dismissed  without  prejudice,  when.   1S4. 

Before  debt  due — Continued  when,  187. 

Action  may  be  brought  in   justice  court,  when.    189. 

A  proceeding  in  error,   141   note. 

Not  according  to  course  of  common  law.   141     note. 

When    real   estate   sold   under   execution   may    levy   on   other    property, 

142   note. 
No  action  in  until  petition  filed,  143    note. 
Summons   must   be  issued,    143     note. 

Domicile  includes  residence  with  intent  to  remain,   144    note. 
Order  for  deed,  No.  OS. 
Sheriff's  deed  to  purchaser,  No.  69. 

Attachment — Forms  for— 

Petition  in.  No.  48. 

Affidavit  for,  No.  49. 

Bond  in,  No.  50. 

Order  of  by  clerk  to  sheriff,  No.  51. 

Sheriff's  return  in,  No.  52. 

Affidavit  for  service  by  publication,  No.  53. 

Proof  of  publication  for  non-resident  in.  No.  55. 

Finding  as  to  correctness  of  legal  notice,  No.  55. 

Decree  of  sale  of  attached  property  as  upon  execution.  No.  56. 

Motion  to  set  aside  order  of  sale  in,  No.  57. 

Order  sustaining  motion,  No.  58. 

Answer  of  defendant  in,  No.  59. 

Reply  of  plaintiff  in.  No.  60. 

Verdict  of  jury  in.  No.  61. 

Motion  for  new  trial  in.  No.  62. 

Order  overruling  motion  for  new  trial  in.  No.  64. 

Sheriff's  return  of  sale  in.  No.  65. 

Proof  of  publication  in.  No.  66. 

Appraisement  of  real  estate  and  oath  of  appraisers  in.  No.  67. 

Confirmation  of  sale,  distribution  and  order  for  deed  to  purchaser  of 

attached  property  in.  No.  68. 
Sheriff's  deed  in.  No.  69. 

Attorney — 

Duty  to  list  property  for  taxation.  402. 

Summons  may  not  be  served  on.  when.  22. 

Fee  in  partition  taxed  as  costs  in  partition,  333. 

Amendments — 

Court  may  allow  in  condemnation  proceedings,  531. 


754  INDEX. 

» 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Antenuptial    contract — 

I  discussion  of,  463. 
See  "Subject  Dower." 

Auditor — 

Duty  in  tax  sale.  414.  415.  and  following. 

Of  State's  duty  as  to,  414. 

To  make  deeds  to  purchaser  at  delinquent  tax  sales,  425,  435. 

Minutes  of,   in   delinquent    tax   sale.    437.    138. 

Duty  as  to  lands  redeemed,  43S. 

Duty  as  to  deeds  for  land  sold  in  other  county,  440. 

To  transfer  land  sold  for  taxes,  441. 


B 

Bankruptcy — 

Proceedings  in,  292  to  294. 

Appointment  of  trustee,  292. 

Trustee,  power,  292. 

Appraisal  of  real  estate,  293. 

Oath  of  appraisers,  293. 

Public   sale   in.  294. 

Private  sale  in,  294. 

Petition  for  sale,  294. 

Amount  for  which   sale  may  be  made   in,  294. 

Sale  subject  to  wife's  dower,  294. 

Sale  subject  to  encumbrance,  294. 

Sale  discretionary  with  court,  294. 

Liens  to  attach  to  fund  in  sale,  294. 

Bankruptcy — Forms  for — 

Order  appropriating  appraisers.  No.  246. 
.    Oath  of  appraisers,  No.  247. 
The  appraisement,  No.  247. 
The  appraisement,  return,  No.  247. 
Petition  private  sale,  No.  248. 
Order  to  sell  at  private  sale,  No.  249. 
Entry  confirming  private  sale,  No.  250. 
Petition  public  sale,  No.  251. 
Order  to  sell  at  public  sale,  No.  252. 
Petition  and  order  for  sale  subject  to  lien.  No.  253. 
For  decree  of  sale  at  public  auction,  No.  254. 
For  deed  by  trustee  to  purchaser,  No.  255. 


Bill  of  exceptions — 

See  subject,  "Complete  Record." 

To  be  filed,  but  not  recorded,  when,  86. 


index.  755 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 
Bond— 

Of  trustee  in  proceedings  to  sell   an  entailed  estate,  Nos.   78,   7!). 

In  attachment,  No.  50. 

To  prevent  sale  of  real  estate  by  administration  to  pay  debts,  219. 

Additional  sale  to  pay  debts,  225. 

To  be  given  by  foreign  administrator's  sale  of  real  estate.  24."!. 

Dower  in  estate  held  under  bond,  45... 

Of  owner,  when  -street  or  highway  to  be  opened,  517. 

Bond  required  of  vendee  in   recoupment  of  liens,   592. 

Boat- 
Lien  allowed  for  erecting,  altering,  repairing,  etc.,  377. 

Building— 

Value   assessed   in   condemnation   case,   when    part   only   on   land,   513, 

539. 
Election  of  owner  as  to,  in  condemnation  cases,  539. 

Bridge — 

Lien  for  building,  377. 

Real  estate  condemned  for,  505. 

c 

Caveat   emptor— 

Term  defined,  65. 
Applies  to  judicial  sales,  65. 
Specific  instances,  65. 
See  "Judgments,"  65. 

Cause    of   action — 

What  may  be  joined  in  ejectment,  590. 
What  may  be  united  in  ejectment,  590. 

Cancellation — 

Of  conveyances  in  ejectment,  590. 

Certificate — 

To  purchaser  at  delinquent  tax  sale,  422. 
Auditor's  tax  certificate  assignable,  424. 
Auditor  to  make  deed  for,  when,  425. 

Cemetery — 

Sale  of  lands  and  procedure,  348. 

Procedure  and  notice,  348. 

See  subject  "Church." 

Real  estate  condemned  for,  505,  506. 


756  INDEX. 

1  Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Church — 

Sale  of  property  of,  347,  o48,  349,  360,  361. 

Procedure  in,  347.  348,  349. 

Salo  <>i  abandoned  property,  340. 

Notice  in  sale  of  abandoned  propertj    in.  3.">t),  353. 

Decree  of  court  in,  350. 

Procedure   in   conveyance   of   consolidated   church,  351. 

Where  action  to  be  brought,  351. 

Who  made  parties,  351,  352. 

Church    property — Forms — 

Petition  to  exchange  and  sell,  Xos.  206,  302. 
Legal  notice  and  proof  of  same.  Nbs.  207.  303. 
Order  of  court,  authorizing  sale.  Xos.  20S.  304. 
Report  of  sale,  No.  299. 
Confirmation  of  sale,  Xos.  300,  305. 
Deeds,  Xos.  301.  306. 

Citizens — 

Form  for  affidavit  of,  where  real   estate   is  sold  in  which  insane  per- 
son has  right  of  dower,  Xo.  384. 

Clerk- 
Duty  as  to  docket  and  records,  86,  87,  88. 
Precipe  for  summons  directed  to,  6. 

Duty  of  as  to  transcripts  from  justice  and  mayor's  court,  04. 
Copy  of  appraisement  of  real  estate  filed  with,  1<>7. 
Duties  of  clerk  as  to  confirmation  of  sale,   118. 
Duty  as  to  entering  judgment  against  principal  and  surety,  135. 
Duty  as  to  execution  docket,  and  the  index  thereon,  13ti. 

Clerks — Forms  for — 

Execution  to  sheriff,  Xos.  4,  19,  21. 

Order  of  sale  to  sheriff  under  vendi,  Xo.  7. 

Order  of  sale  to  sheriff,  Xos.  28,  42. 

Order  of  attachment  by  clerk  to  sheriff,  Xo.  51. 

Order  directed  by  clerk  to  sheriff  in  sale  of  an  entailed  estate,  Xo.  7". 

Order  of  appraisement  issued  by  clerk  to  administrator,  in  sale  of  real 

estate  to  pay  debts,  Xo.  106. 
Order  of   sale   from   clerk   to   administrator   in   sale   of   real   estate   tc 

pay  debts,  Xo.  110. 
Writ  of  partition  from  clerk  to  sheriff,  Xo.  267. 
Writ  of  dower  from  clerk  to  sheriff,  No.  371. 
Order  of  sale  in  foreclosure,  from  clerk  to  sheriff,  Xo.  315. 
Order  of  sale  in  foreclosure  of  mechanic's  lien   from   clerk  to   sheriff, 

Xo.  366. 
Order  of  sale  in  foreclosure  of  tax  lien,  from  clerk  to  sheriff,  Xo.  349. 
Xotice  bv  clerk  to  committee  in  sale  of  insane  wife's  dower,  Xo.  380. 


INDEX.  757 

[Figures  pi-eced-::  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Complete    record — 

What  constitutes,  84. 

Clerk  may  make.  84. 

May  be  waived,  84. 

When  to  be  made,  85. 

Judge  to  sign,  85,  87. 

Shall  consist  of  what,  86. 

Bill  of  exceptions  to  be  filed,  but  not  recorded,  86. 

Abbreviations  of  accounts  or  copies  attached  to  pleadings,  86. 

Court  to  order  completed  in  certain  cases,  87. 

Appraisal  of  real  estate  not  a  part  of,  107. 

Commissioner — Master   Commissioner— 

May  convey  real  estate,  when,  120. 

Sheriff  may  act  as,  when,   121. 

Sheriff  may  be  required  to  make  sale  for,  121. 

Compensation  of,  121. 

Condemnation    proceedings — 

Constitutional  provision  United  States,  502. 

Constitutional  provision  State  of  Ohio,  502. 

Compensation  to  owner,  502. 

Necessity  for,  503. 

Power  in  people  for,  503. 

Power  of  municipal  corporations  as  to,  504. 

Power  strictly  constitutional;  504   note. 

Can  not  restrict  amount  of  real  estate  condemned,  except  when  taken 

in  bad  faith,  504    note. 
Owner  compensated  where  real  estate  taken  for  street.  504    note. 
May  be  assessed  by  front  foot,  504   note. 
Municipality  may  appropriate  for  what   purposes,  505. 
Real  estate  outside  of  municipality,  500. 
Resolution  of  council  and  notice,  507. 
Manner  of  notice,  507. 
Service  by  publication,  507. 

Municipality  may  appropriate  for  what  purpose,  505. 
Real  estate  outside  of  municipality,  506. 
Resolution  of  council  and  notice,  507. 
Manner  of  notice,  507. 
Service  by  publication,  507. 
When  application  to  be  made,  508. 
Service  of  notice  to  owner,  509. 
Time  for  inquiry,  510. 
The  view  of  the  premises,  511. 
Guardian  ad  litem,  512. 
Dispute  as  to  ownership  to  cause  no  delay,  512. 


758  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Condemnation    proceedings — Cont  in  ued. 

Assessment  to  be  returned  by  jury,  how,  513. 

Manner  of  conducting  proceedings,  513. 

Building  partly  on  land  to  be  appropriated — Election  of  owner  as  to, 
513,  539. 

Jury  may  assess  for  part,  when,  515. 

Order  as  to  payment  of  assessment,  515. 

Interpleader,  515. 

Costs,  how  assessed  and  paid,  516,  543,  55!),  500. 

Bond  of  owner  where  street  or  highway  to  be  opened,  517. 

Review  of  proceedings,  518. 

Appeal  in,  518. 

Effect  of  delay  to  take  possession  of  in  six  months,  511*. 

Law  governing  appropriation   of   private  property.   520. 

Probate  court,  exclusive  jurisdiction,  when,  521. 

Appropriation  of  real  estate  by  a  corporation,  522. 

In  what  case  only  may  appropriation  be  made,  522. 

Proceedings  when  property  belongs  to  minor,  idiot,  imbecile  or  insane 
person,  523. 

What  the  petition  to  contain,  and  where  to  be  filed,  524.  525. 

Summons,  its  command  service,  520. 

Service  by  publication,  527. 

Court  to  determine  necessity  for  appropriation,  before  trial  by  jury, 
528. 

Manner  of  securing  jurors,  529. 

Separate  trials  in,  530. 

Amendments  may  be  allowed,  531. 

Time  of  trial  in,  532. 

Discharge  of  juries  in,  532. 

Panel  of  jurors  may  be  filled,  how,  533. 

Jurors  interrogated  by  the  court,  533,  534. 

Oath  to  be  administered  to  the  jury,  535. 

Form  of  writ  to  the  sheriff,  530. 

Duties  of  court  to  sheriff  as  to  description  of  real  estate.  537. 

Expense  of  writ  of  view,  537. 

Costs  to  be  taxed  in,  how,  537.  538. 

Verdict  and  confirmation.  540. 

When  corporation  may  have  possession,  541,  542. 

Duty  of  the  court  when  corporation  fails  to  pay  amount  assessed,  542. 

When  party  may  recover  costs  and  attorney  fees  in,  543. 

Proceedings  for  new  trial,  544. 

Error  proceedings,  545,  546. 

Of  school  land,  547. 

In  what  court  action  may  be  had,  548. 

Rights  of  parties  absent  or  under  disability,  549. 

Procedure  when  there  are  conflicting  claims  to  real  estate  to  l>e  con- 
demned, 550,  551,  552. 


TNDEX.  759 

[Figures  preceded  by  '  No."  refer  to  Forms;  otherwise  to  Sections.] 

Condemnation    proceedings — Continued. 

Unfinished  bed  of  railroad  company  condemned,  how,  553,  554,  555. 
Procedure  when  land  held  by  a  corporation  without  agreement,  556. 
Summons,  judgment  and  execution,  557. 
An  injunction  may  be  allowed,  when,  55S. 

Condemnation  proceedings — Forms    for — 

Application  or  petition  by  city  to  assess  damages,  No.  388. 

The  precipe  to  the  clerk,  No.  389. 

The  order  of  court  as  to  the  manner  of  notice.  No.  3!»U. 

The  notice  to  be  served  by  the  sheriff,  No.  391. 

The  sheriff's  return,  No.  392. 

Answer  in,  No.  393. 

Reply,  No.  394. 

Motion  to  be  made  party,  No.  397. 

Waiver  of  notice  entry  of  appearance,  No.  396. 

Offer  of  plaintiff  to  confess  judgment,  No.  398. 

Decree  and  order  impaneling  jury,  No.  399. 

Order  to  clerk  and  sheriff  to  draw  jury,  No.  400. 

List  of  names  drawn  for  jurors,  No.  401. 

The  venire,  No.  402. 

Sheriff's  return  of  service,  No.  403. 

Writ  of  view,  No.  404. 

Sheriff's  return  of  writ  of  view,  No.  405. 

Verdict  of  jury,  No.  406. 

Order  confirming  verdict,  No.  407. 

Petition  by  railway  to  appropriate  private  property,  No.  408. 

Precipe  to  clerk,  No.  409. 

Order  for  summons  and  fixing  time  and  place  for  hearing,  No.  410. 

Summons  and  sheriff's  return  of,  No.  411. 

Motion  to  dismiss,  No.  412. 

Order  overruling  motion  directing  jury  to  be  drawn  and  fixing  time  for 

jury  to  appear,  No.  413. 
Order  to  draw  jury,  No.  414. 

Sheriff's  return  of  his  proceedings  under,  No.  415. 
Venire,  No.  416. 

Sheriff's  return  of  service,  No.  417. 
Ordering  view,  No.  418. 
Writ  of  view,  No.  419. 
Sheriff's  return  of  writ.  No.  420. 
Verdict  of  jury.  No.  421. 
Motion  to  set  aside  verdict,  No.  422. 
Entry  confirming  verdict.  No.  423. 

Confirmations — Forms  in — 

Of  sale  under  vendi  exponas.  No.  12. 

Of  sale  by  sheriff  made  under  decree  setting  aside  fraudulent  convey- 
ance and  marshaling  liens.  Nos.  33,  46. 


<7(i()  INDEX. 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Confirmations — Forms    in — Continued. 

Of  sale  in  attachment,  No.  68. 

Of  administrator  or  executor's  sale  of  real  estate,  Nos.    114.    113  and 

138. 
Appraisement  in  administrator  or  executor's  sale  of   real   estate,  Nos. 

109,  120. 
Of  guardians'  sale  of  real  estate,  Nos.   177,   192. 
Of  appraisement  in  guardian's  sale  of  real  estate,  Nos.   173,  187. 
Of  assignee's  sale  of  real  estate,  No.  210. 
Of  receiver's  sale  of  real  estate,  No.  244. 
Of  sale  in  partition,  No.  271. 
Of  sale  of  church  property,  No.  300. 
Of  mortgage  of  church  property,  No.  305. 
Of  sale  of  real  estate  in  foreclosure  of  mortgage,  No.  321. 
Of  sale  of  real  estate  in  foreclosure  of  mechanic's  lien,  No.  342. 
Of  foreclosure  of  tax  lien,  No.  350. 
Of  commissioner's  report  assigning  dower,  No.  374. 
Of  verdict  in  condemnation  proceeding,  Nos.  407,  423. 

Corporation — 

Change  of  venue  in  suit  against,  21. 

Service  of  summons  upon,  32. 

Return  of  service  against,   33. 

Meaning  of  term  "Managing  agent  of,"  34. 

See  subject,  "Service  of  Summons." 

Receiver  may  appoint  for,  290. 

Condemnation  proceedings  by,  502,  et  seq. 

Costs — 

How  assessed  in  condemnation  proceedings.  516. 

To  be  taxed  how,  in  partition,  333. 

Of  writ  of  view  in  condemnation  cases.  537.  538,  543. 

How  recovered  in  condemnation  cases,  543,  510,  559.  560. 

In  action   under  occupying  claimant's  law.  599. 

Committee — 

Form   for  appointment   of   in   proceedings  to  sell   real  estate   in  which 
insane  person  lias  right  of  dower,  No.  380. 

Constitutional — 

Disentailing  act  is,  191. 

Constitution — 

Of  Ohio  in  eminent  domain,  592. 

Of  United    States   in    eminent   domain,  502. 


INDEX.  761 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Courts — 

Supreme  Court  can  appoint  receiver,  when,  200. 
Common  pleas  court  may  appoint  receiver,  when,  290. 
Circuit  court  may  appoint   receiver,  when.  290. 
Probate  court  may  appoint  receiver,  when,  200. 
What  courts  have  power  to  sell  guardian's  real  estate,  246. 
What  courts  may  sell  decedent's  real  estate,  2i'7. 
What  courts  may  sell  real  estate  in  assignments,  270. 
What  court  to  hear  condemnation  proceedings,  509. 

Creditor — 

Receiver  by,  290. 

Curtesy — 

Provision  of  sale  not  to  apply  in  proceedings  to  sell  an  entailed  estate, 
193. 

Owner  of  t''   pay   tax  on — Forfeiture.  407. 

Cuyahoga    county — 

Delinquent  tax  in,  412. 


D 

Death — 

Procedure  in  case  of  death  after  dower  proceedings  begun.  4  70. 

Debts — 

See   proceeding  by  administrator  or  executor  to  pav   decedent's   debts 
206,  rt  seq. 

Decedent's    land    contract — 

Survivor   may   make   deed.   when.   005. 

Petition  for,  005. 

Proper  parties.  005. 

Petition  must  contain  what.  606. 

The  order  of  the  court,  recitals  in  deed,  607. 

Manner   in   which    administrator   may  complete    real    contract.   000. 

In  what  court  action  to  be  brought.  608. 

Parties  defendant,  608. 

The  order  of  the  court.  000. 

The  deed  and  its  effect,  000. 

Heirs  may  have  like  action,  when,  010. 


762  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Decedent's    land    contract — Forms    in — 
Petition  to  complete  real  contract.  No.  44S 
Answer  of  defendants.  No.  440. 
Answer  of  widow,  No.  450. 
Order  of  court  to  complete  contract.  No.  451. 
The  deed,  No.  452. 
Another  petition,  No.  453. 
Petition  of  surviving  contractors  to  convey  decedent's  land,  No.  454. 

Deeds — 

Equity  may  correct  deed  by  court,  when.  69. 

Parol  evidence  to  correct,  when,  61). 

Successor  of  sheriff  or  master  to  make  deed,  121. 

Recitals  in  deed  of  sheriff  or  masters,  122. 

Execution  and  delivery  of  sheriff's  or  master's  deed,  122. 

Effect  of  such  deed  as  evidence,  124. 

Successor  of  sheriff  to  make  deeds,  when,  127. 

Recitals  in,  127. 

Sheriff's  deed  under  execution,  Nos.   13,  22,  34. 

Sheriff's  deed  by  levy  under  foreign  execution.  No.    .7. 

Deed  at  delinquent  tax  sale,  423. 

Auditor's  deed  at  delinquent  tax  sale,  424. 

Effect  of  such  deed,  425. 

Deeds — Forms   for — 

Property  sold    in   action   to  set   aside   fraudulent   conveyance,   Nos.    34 

and  47. 
For  sale  of  real  estate  under  attachment  proceedings,  No.  69. 
Administrator's  deed  for  sale  of  real  estate  at  public  auction.  No.  115. 
Administrator's   deed   for   sale   of   real    estate    sold    at    private    sale    in 

probate  court,  No.   123. 
Administrator's    deed    for    sale    of    real    estate    at    public    auction    in 

probate  court,  No.   130. 
Guardian's  deed  in  sale  of  real  estate,  No.  170. 
Deed  of  assignee  in  sale  of  real  estate  at  private  sale,  No.  217. 
In  sale  of  real  estate  by  assignee  by  public  sale.  No.  222. 
By  receiver  to  purchaser  at  receiver's  sale,  No.  245. 
By  trustee  in  bankruptcy,  No.  255. 
In  partition  proceedings,  No.  272. 
Church  deed  in  exchange  of  real  estate.  No.  301. 
Church  in  sale  of  real  estate,  No.  306. 

Sheriff's  deed  in  foreclosure  of  real  estate  mortgage,  No.  322. 
Sheriff's  deed  in  foreclosure  of  mechanic's  lien.  No.  343. 
Sheriff's   deed   in  foreclosure  of  tax   lien.  No.  357. 

Decree— 

See  subject,  "Judgment." 

Effect  of  when  set  aside  or   reversed,  70. 

Decree  ordering  sale  never  becomes  dormant,  999. 


INDEX.  763 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 
Decree — Forms   for — 

Setting  nside  a  deed,  marshaling  liens  and  ordering  sale.  No.  27. 

Ordering  sale  under  foreign  levy,  No.  41. 

Decree  in  sale  of  entailed  estates,  Nos.  72,  86. 

Decree  in  common  pleas  court  setting  aside  fraudulent  deeds  and  order- 
ing administrator  to  sell  real  estate,  No.   105. 

For  sale  or  exchange  of  church  property.  Nos.  298,  304. 

Decree  in  partition,  No.  2C5. 

Authorizing  sale  and  exchange  of  church  property.  No.  208. 

Authorizing  church  to  mortgage  real  estate,  No.  304. 

Foreclosing  real  estate  mortgage  and  order  of  sale.  No.  :«r>. 

Foreclosing  tax  lien  and  order  of  sale,  No.  348. 

Decree  assigning  dower,  No.  370. 

Decree  for  sale  of  real  estate  free  of  insane  wife's  right  of  dower, 
No.  387. 

Vacating  alley  or  street.  No.  427. 

Quieting  title  to  real  estate,  No.  433. 

Denial,  general — 

What  may  be  proved  under,  in  ejectment,  582. 

Deposit — 

Required  in  condemnation  cases,  when,  515. 

Ditches — 

Lien  on  for  work,  etc.,  381. 
Real  estate  condemned  for,  505. 

Divorce — 

Bars  husband  from  dower,  when,  497. 
Bars  wife  from  dower,  when,  496. 

Docket — 

Execution  docket  of  sheriff,  94. 

Entries  to  be  made  therein,  94,  116. 

Entries  therein,  notice  to  whom,  94. 

See  subject  "Record"  and  "Complete  Record." 

Clerk's  duty  as  to,  86,  87,  88. 

Clerk's  duty  as  to  execution  docket  and  the  index  thereof,  136. 

Domicile — 

Not  the  same  as  residence  in  attachment,  154. 


764  INDEX. 

[Figures  preceded  l>y   "No."  refer  to  Forms:  otherwise  to  Sections.] 

Power — 

Origin  and  history,  452. 
Classification  by  Glanville,  452 
In  what  estates,  453. 
Reversion.  453. 
Remainder,  453. 
Estate  of  inheritance.  45."). 
Estate  held  in  bond  or  article,  453. 
Favorite  in  law,  453. 

Law  applies  to  husband  as  well  as  to  wife,  453. 
Inchoate  dower,  nature  of,  454,  454  note. 
Inchoate  dower,  assignability.  455.  455  note. 
Wife  a  party  to  action.  457,  457  note. 
When  dower  consummate,  45ii. 

Inchoate  dower,  released  by  order  of  court.  457.  457  note. 
Dower  subject  to  every  infirmity  attaching  to  seizin,  458. 
.  Dower  attaches  to  proceeds  of  sale  of  real  estate.  458. 
Marriage  necessary  to  create,  459. 
Common  law  marriage,  459. 
Seizin  necessary  to  create,  460,  460  note. 
Attaches  to  what  property.  461. 
Does  not  attach  to  what  property,  402. 
Jointure,  with  reference  to  dower,  463. 
Right  of  in  partnership  property,  464,  464  note. 
Widow's  right  of  when  there  are  conflicting  claims,  465,  465  note. 
Widow's  right  of  dower  in  partition  proceedings,  4<!<i,  466   note. 
Homestead  allowed  in  addition  to  dower.  466. 
Widow  may  redeem,  when,  406. 

Effect  of  defective  conveyance  in  lieu  of  dower,  469. 
Effect  of  eviction  from  property  conveyed  in  lieu  of  dower,  470. 
Adultery  bars,  when,  471. 

In  lands  fraudulently  conveyed  by  husband,  472. 
Waste  forfeits,  473. 
Penalty  for  non-payment  of  tax,  474. 
Heirs  may  assign,  475. 
In  timber  land,  483. 
Sheriff's  duty  as  to  timber  land,  483. 
During  pendency  of  petition.  4S4. 
Exemptions  in  estimating  yearly  value  of,  485. 
Minor  heir  not  prejudiced  by  collusive  assignment  of,  486. 
Costs  in  proceedings,  487.     - 
Petition  for,  476. 

Procedure  incidental   to  the  action.  477. 
Venue  where  land  lies  in  different  counties.  478. 
Procedure  in  case  plaint  ill'  dies  before  dower  is  assigned,  47.). 
Commissioners  to  assign  dower — Their  powers  and  duties,  480. 
Sheriff's  duties,  480. 


INDEX.  765 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Dower — Continued. 

Commissioner's  oath,  480 

Return  i  I  proceedings,  481. 

Assignment  of  indivisible  estate,  481. 

In  rents  and  profits,  4m!. 

I'.\   metes  and  bounds,  482. 

In  improved  timber  land.    183,  4s:i   note. 

In  unimproved  land,  482. 

Election  to  take  in  proceeds  of  sale,  188. 

May   waive   right,   when,   4*!l. 

Effect  of  election  to  waive  by  answer,  4S!i. 

Guardian  may  answer  for  widow,  when.  400. 

Guardian  may  elect  for,  490. 

Dower  of  insane  person — Discharged,  how.  491. 

Committee  to  inquire  into  question  of  insanity.  491. 

Guardian  ad  litem  for  insane  widow  or  widower,  491. 

Report  of  committee  to  inquire  into  question  of  sanity,  4!U. 

Procedure  on  report  of  insanity.  493. 

Lands  of  insane  person  barred  of  dower,  how.  4!>4. 

When  dower  of  insane  person  may  l)e  barred  by  conveyance.  4!»f>. 

Wife  barred  of  dower  when  husband  granted  divorce,  496. 

Husband  barred  of  dower  when  wife  granted  divorce  for  his  aggression, 

496. 
Assignee  in  administrator's  sale  to  pay  debts,  230. 
In  partition,  324. 
Exceptions.  324. 
In  oil  leases.  324. 

Assignment  by  commissioners  in  partition,  325. 
Assignments    by    commissioners    in    partition    by    rents    and    profits, 

No.  295. 
Estate  to  pay  tax — Forfeiture  of  estate.  a>  to,  407. 

Dower — Fornis    in    assignment    of — 
See  Xos.  3G.">  to  374.  inclusive. 
For  sale  of  real  estate  free  of  dower  of  insane  wife.  Xos.  375  to  385, 

inclusive. 
Petition  for  assignment  of  dower,  Xo.  365. 
Summons  in,  Xo.  366. 
Sheriff's  return  of  summons,  Xo.  367. 
Order  appointing  guardian  ad  litem,  Xo.  36S. 
Answer  of  guardian  ad  litem,  No.  369. 
Decree  assigning  dower,  Xo.  370. 
Writ  of  dower  issued  to  sheriff,  Xo.  371. 
Sheriff's  writ.  Xo.  372. 
Commissioner's  report.  Xo.  373. 
Confirmation  of  report,  Xo.  374. 


76t>  INDEX. 

[Figures  preceded  by  "No."   refer  to   Forms;  otherwise   to  Sections.] 

Power — Forms    in    assignment    of — Continued. 

Petition  by  husband  for  sale  of  his  real   estate  free  of  insane  wife's 

dower,  No.  375. 
Summons  in,  No.  370. 
Sheriff's  return  of  summons,  No.  377. 
Motion  for  appointment  of  guardian  ad  litem,  No.  378. 
Answer  of  guardian  ad  litem,  No.  381. 
Order  appointing  guardian  ad  litem,  No.  37!». 
Notice  vf  clerk  to  committee.  No.  380. 

Motion  for  substitution  of  a  member  of  committee,  No.  382. 
Report  of  committee  to  investigate  insanity  of  wife.  No.  383. 
Affidavit  of  citizens  as  to  necessity  for  sale,  No.  384. 
Order  appointing  appraisers,  No.  385. 
Oath  of  appraisers,  No.  386. 
Appraiser's  report,  No.  386. 
Order  of  court  permitting  sale  free  of  insane  wife's  dower,  No.  387. 

E 

Ejectment — 

The  law  and  procedure  in  the  action  to  recover  possession  of  real  estate, 

579  to  592. 
The  nature  of  the  action,  579. 
Discussion  of  the  old  action,  579. 

The  fictitious  action — The  old  English  real  action,  579. 
The  action  under  the  code,  579. 
The  petition,  and  what  it  should  contain,  589. 
Allegations  of  possession,  579. 
Description  of  the  property,  579. 
Owner  of  a  legal   title  as   against  a  defendant  in   possession   under  a 

land  contract,  580. 
Allegations  of  title,  580. 

Averments  as  to  possession  as  to  statute  of  limitations,  580-582. 
Petition  by  tenant  in  common  against  co-tenant,  581. 
Denial   of  plaintiff's   right,   581. 
Answer  to  petition  in  ejectment,  582. 
What  may  be  proved  under  a  general  denial,  582. 
Recovery  when  right  terminates  during  the  action,  583 
Who  may  maintain  the  action,  584. 
List  of  parties  who  may  maintain  the  action,  584. 
Plaintiff's  title  in.  585. 
Title  sufficient  against  intruder,  585. 
Proof  of  title  required  in  the  action.  586. 
Prima  facie  case  in,  586. 

When  title  back  to  common  source  must  be  shown,  586. 
Neither  party  may  contest  prior  deed.  when.  587. 
Adverse  posvsession  and  statute  of  limitations,  588. 


INDEX.  767 

I  Figures  preceded  by  "No.*'   refer  to  Forms;  otherwise  to  Sections.] 

Ejectment — Continued. 

Nature  of  adverse  pos^ssion,  58S. 

The  relief  obtained  in  the  action,  589. 

Causes  of  action  joinable  in,  590. 

Cancellation  of  conveyances   in,  590. 

What  causes  of  action  may  be  united  in  ejectment,  590. 

The  action  triable  to  a  jury,  when,  591. 

No  right  of  appeal  in,  591. 

If   principal    relief    is    possession,   and    incidental    relief    injunction,    to 

prevent  multiplicity  of  suits,  and  to  establish  boundary  line,  the 

action  for  jury,  591. 
Vendee  may  recoup  amount  of  liens,  when,  592. 
Bond  of,  in,  592. 

Occupying  claimant's  law — Parties  may  have  benefit  of,  when,  593. 
Nature  of  title  required  to  give  in,  594. 
Statute  comes  to  what  persons,  594. 
Owner  of  life  estate  may  not  have,  when,  594. 
What  purchasers  are  protected  by,  594. 
Title  under  a  sale  for  taxes  sufficient  to  protect,  595. 
Entry  of  claim  for  improvements,  596. 
Action  to  be  tried  by  regular  jury,  597. 
View  of  premises  by  jury,  597. 
Talesmen  summoned,  how,  598. 
Setting  aside  verdict  in,  599. 
Costs  in,  599. 

Judgment  and  execution  on  verdict  for  plaintiff,  600. 
What  may  be  included  in  the  judgment,  600. 
Proceedings  if  verdict  is  for  occupying  claimant,  601. 
Writ  of  possession  will  issue,  when,  602. 

Procedure  when  successful  claimant  elects  to  receive  value  of  land,  603. 
Occupant  may  have  action  for  title,  when,  604. 


Ejectment — Forms   for — 

Petition  in,  No.  436. 

Answer  of  a  defendant,  No.  437. 

Verdict  of  jury,  No.  438. 

Judgment  on  verdict  and  application  by  occupying  claimant  for  valua- 
tion of  improvements,  No.  439. 

Application  to  the  clerk  for  a  jury,  No.  440. 

The  writ  for  a  jury  from  clerk  to  sheriff,  No.  441. 

The  certificate  of  juror's  oath,  No.  442. 

Assessment  by  jury  for  improvements,  No.  443. 

The  oath  of  the  jury,  No.  445. 

Order  and  judgment — Plaintiff  electing  to  pay  for  improvements  and 
keep  lands,  No.  446. 

Another  form  for  petition  in  ejectment,  No.  447. 


768  INDEX- 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.) 

Election-  — 

Of  heir  in  partition  to  take  at  appraisement,  318. 

To  take  under  will  <..   dower,  how  made,  498. 

Court's  duty  as  to,  498. 

Of  an  insane  person,  how  made,  499. 

Duty  of  person  appointed  bj;  court  to  make  for  insane  person,  499. 

Effect  of  the  election  or  non-election,  500. 

Does  not  bar  dower  when  will  gives  both,  501. 

When  action  may  be  brought  for  advice  of  court  as  to,  501. 

Electric    lighting    plant — 

Real  estate  condemned  for,  505. 

Eminent    domain — 

See  subject,  "Condemnation  Proceedings." 

Entry    of    appearance — 

In  attachment,  how  effected,  145. 

Entailed    estates — 

Procedure  in,  forms,  Nos.  70  to  03. 

General  discussion  of,  100. 

Limitation  of  entails  in  Ohio,   100. 

Act  constitutional,  101. 

Some  States  allow  sale  by  court  of  equity,  101. 

Venue  of  the  action,  192. 

Who  may  obtain  sale  of,  193. 

Probate  court  can  not  make  such  sale,  193. 

Instances  authorizing  sale,  194. 

What  the  petition  for  sale  should  allege,  195. 

Parties  to  the  action.  105. 

Incidental  procedure  in  the  action,  196. 

Forms,  Nos.   39,  40,  41,  42,  43,   44,  310,  311,  312,  313,   142,   143,   144, 

145,  46,  47. 
Guardians  <ul  litem  in  the  action,  197. 
Plaintiffs  not  allowed  fee,  198. 
Order  of  sale  in,  198. 
Sale  by  consent,  199. 
Guardians  may  assent  for  wards,  199. 
Sale  confirmed,  200. 
Disposition  of  proceeds  of  sale,  201. 
Investment  of,  202. 

Nature  of  title  of  funds  reinvested,  203. 
Taxes  paid  on.  how,  204. 
How  entailed  estates  leased  for  term  of  years,  205. 


[NDEX.  r69 

[Figures  preceded  by  "No."  refer  to  Fo:ms;  otherwise  to  Sections.] 

Forms    in    entailed    estates — 

Petitions  in.  Nos.   70.   84,  93. 

Summons  in  and  waivers.  No.  VI. 

Answer  in.  No.  85. 

Order  of  sale  and  appraisement,  Nos.  72,  73,  Mi.  87,  88. 

Appraisement    in — Oath    of    appraisers — Sheriff's    release    in.    Nos.    75, 

70,  74. 
Trustee's  appointment  and  bond   in.   X"-.  77.  78.  8<i.  88. 
Bond  of  trustees,  Nos.  78,  89. 
Oath  of  trustees,  No.  80. 

Acceptance  of  appointment  by  notice,  No.  88. 
Answer  of  trustees.  No.  80. 

Confirmation  of  sale — Appraisement  and  distribution.  Nos.  87,  01. 
Sheriff's  deed  in.  No.  82. 
Order  as  to  investment  in,  No.  92. 

Error — 

Proceedings  in  error  in  condemnation  nroceedings,  518.  54.">,  546. 

In  partition.  340. 

In  attachment,  179. 

Executor  or  administrator  may  prosecute  in  attachment,  No.   181. 

Execution — 

In  condemnation  cases,  557. 
Sheriff's  return  of,  No.  20. 

Executor — 

"May  not  bid  at  his  sale  of  real  estate,  111. 
Duty  to  pay  tax,  404. 

Executions — 

Statutory  definition,  90. 

May  be  executed  to  sheriffs  of  different  counties  at  same  time.  90. 

See  Form  No.  4  for  form  of. 

Delivery  of  to  sheriff,  90. 

May  be  sent  to  sheriff  by  mail,  90. 

Clerk  may  deliver  to  plaintiff  or  his  attorney  for  sheriff,  90. 

Probate  court  may  not  issue  on  judgment  of  common  pleas  court,  90. 

Kinds  of.  91. 

Sheriff's  duty  on,  as  to  personal  property.  91. 

Sheriff's  duty  on,  as  to  real  estate,  91. 

As  to  common  law  names  of,  91. 

The  vendi  exponas,  91. 

Against  property,  91. 

Against  person,  91. 

For  delivery  of  possession  of  real  property,  91. 


^70  INDEX. 

[figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Executions — Continued. 

What  it  must  contain,  91. 

In   attachment    proceedings,   91. 

Levy  and  sale  under,  92. 

What   property  may  be  sold  under,  92. 

Vested  interests,  92. 

Permanent  leasehold  estates,  subject  to,  92. 

Goods  and  chattels  subject  to,  92. 

Trust  estates  not  subject  to,  92. 

Homestead  not  subject  to,  92. 

Coin  may  be  taken,  when,  92. 

Ownership  true  test  for  officer,  92. 

Levy  and  sale  of  property  incumbered  by  prior  liens,  92. 

Procedure  as  to  in  case  prior  liens,  92. 

Levy  of  property  under  bailment,  92. 

Levy  of  property  under  conditional  sale,  92. 

Levy  of  property  fraudulently  conveyed,  92. 

Levy  of  property  attached,  92. 

Levy  of  partnership  property,  92. 

Against  a  partnership  on  judgment  in  firm  name  operates,  how,  93. 

Lien  of  foreign,  94. 

Docket  to  be  kept  by  sheriff,  94. 

Notice  of,  94. 

Foreign  execution  levy  dates  from,  when,  94. 

On  justice  and  mayor's  transcripts  of  judgments,  98. 

Its  command,  100. 

How  sales  made  thereunder,  100. 

Sales  of  real  estate,  one-third  cash,  one-third  one  year,  and  one-third 

two  years — Deferred  payments  secured  by  mortgage,  100. 
Sales  cash,  unless  ordered  otherwise,  100. 
Returnable  sixty  days,   100. 
When  not  prior  lien,  101. 
When  on  an  equality  with  each  other,  101. 
First  to  be  levied  on  goods  and  chattels,  102. 

Writ  to  be  returned  "no  goods"  before  lands  to  be  taken  under,  102. 
Debtor  may  waive  levy  on  chattels,  102. 
Appraisement  of  real  estate  under,  103. 
Appraisement  to  be  made,  how,  103. 
Form  of,  see  No.  8. 

Sale  under  must  bring  two-thirds  of  appraised  value,  100,  110. 
Court  may  fix  amount  at  which  real  estate  may  be  sold,  when,  110. 
Who  may  not  bid  at  sale  under,  111. 

Purchaser  under  may  raise  unsatisfactory  bid,  when,  112. 
Advertisement  for  sale  under,  113. 
Advertisement  for  sale,  how  made.  113. 
Advertisement  for  sale,  where  made,  113. 
Requirements  of  advertisement  for  sale  real  estate,  113. 


INDEX.  771 

[Figures  pre  eded  by  "Nu."  refer  to  Forms;  otherwise  t"  Sections.] 

Executions — Cot  tinned. 

Requirements  of  advertisement   for  salt-  street  number,   113. 
Requirements  of  advertisement  as  to  roads  and  townships,  where  land 

is  situate.   113. 
Requirements  of  advertisement  as  to  newspaper,  I  I  \. 
Requirements  of  advertisements  a^  to  number  insertions,  1 14. 
Form  of  publication  for  sale  real  estate,  see  No.  136. 
Form  for  proof  publication  for  sale  real  estate,  see  No.   137. 
Effect  of  mistake  of  publishing  sale  under,  114. 
Publication  of  sale  under,   in  foreign  language.    115. 
Cost  of  publication  of  sale  under,  in  foreign  language.  115. 
Purchaser  under  failing  to  pay  punished  for  contempt,   117. 
Sale  under  to  be  confirmed,  how.  118. 
Duties  of  clerk  as  to,  118. 
Deeds  under  to  be  delivered,  when,  118. 

Officer  to  retain  purchase  money  under  until  sale  is  confirmed,  118. 
When  objection  to  sale  under  for  irregularity  should  he  made,  118. 
Judgment  debtor  may  redeem  from  sales  under,  when,  11!*. 
Requirements  to  redeem  under,  119. 
Printer's  fee  for  publication  of  sale  under,   124. 
Where  sales  of  real  estate  to  take  place  under,  125. 
Alias  executions  may  issue,  when,  125. 
Procedure    under    when    creditors    direct    separate    levies    on    separate 

parcels  of  land,   126. 
Rights  of  owner  when  property  not  subject  to  execution  sold,  128. 
Relief  of  sheriff  who  levies  on  wrong  property  in  good  faith,  129. 
Remedy  where  co-surety  pays  for  property  wrongfully  sold  under,  180. 
New  appraisement  for  sale  under,  may  be  made.  when.  132. 
Must  be  returned,  when,   134. 
Effect  of  return  after  time  limit,  134. 

Or.  judgment  against  principal  and  surety,  how  levied,  135. 
Appraisement  fee  under  execution,  136. 
Penalty  for  refusal  to  act  as  appraiser  under.   136. 
Who  may  swear  appraisers  under,  136. 

May  be  issued  to  another  county  and  returned  by  mail,  when,   137. 
Clerk  to  enter  in  docket  and  index  same,  138. 
Proceeding  under  when  order  of  sale  not  mi  trial  docket.   130. 
Amercement  of  sheriff'  for  failure  to  perform  duties  under,  140. 

Executions — 

Receiver  may  be  appointed  after  return  of,  200. 


Foreclosure — 

Of  mortgage  lien.  363. 
Of  mechanic's  lien,  375. 
Of  tax  lien,  807. 


772  index. 

[Figures  preceded  )>y  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Forms — Oale    under    execution. — 
Forms — Sale  under  execution. 
For  petition.  No.  1. 
For  answer,  No.  2. 
For  the  judgment,  No-.  3. 
For  the  execution,  No.  4. 

For  the  sheriff's  proceeding  under  writ,  No.  5. 
For  the  precipe  for  order  of  sale,  No.  ti. 
For  the  order  of  sale  from  the  clerk  to  sheriff,  No.  7. 
The  appraisement  under,  No.  8. 

The  proof  of  publication  and  the  notice  of  sale.  No.  9. 
The  notice  of  sheriff's  sale,  No.  10. 
The  return  of  the  sheriff,  No.  11. 
The  confirmation  of  sale  by  court,  No.  12. 
The  sheriff's  deed  under  sale,  No.  13. 

Fraudulent    conveyance- — 

Action  by  administrator  to  set  aside  fraudulent  conveyance  of  real 
estate  and  to  sell  real  estate  to  pay  decedent's  debts.  213,  214. 

Forms  for  petition  in  common  pleas  by  administrator  to  set  aside 
fraudulent  conveyance  and  to  sell  real  estate  to  pay  debts.  No.  94. 

Fraudulent    conveyance    of    real    estate — 

Administrator  may  sell,  when,  213. 

When  land  fraudulently  conveyed  in  hands  of  an  innocent  purchaser, 

the  administrator  may  sue  fraudulent  grantee  in  damages,  when, 

214. 
Action  may  not  be  brought   by  administrator  for  benefit  of  heir,  214. 

Furnace — 

Lien  for  altering,  building,  repairing,  etc.,  377. 

G 

Gas    well — 

Lien  allowed  for  labor  and  material  for,  377. 

Gamblers — 

Judgment  against,  04. 

Guardian — 

Power  to  act  in  partition  proceedings,  43.  326. 

Power  of  as  to  minor,  idiot,  imbecile  or  insane  person,  in  partition,  43. 

May  elect  to  fake  estate,  43. 

May  not  bid  at  their  sale-  i  f  real  estate,  111. 

May  consent  for  ward  in  sale  of  entailed  estate.  199. 


index.  773 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Guardian — ( 'on  t  Inued. 

Lien  for  payment  of  tax,  400. 

Duty  of  as  to  payment  of  tax,  402. 

Eminent  domain,  522,  52:?. 

Power  to  sell  real  estate,  245. 

(are  required  in  sale  of  real  estate.  245. 

Statute  to  be  followed,  245. 

No  power  to  sell  by  implication,  245. 

What  court  may  sell,  240. 

Where  petition  must  be  filed,  246. 

Nature  of  action  to  sell,  247. 

Incidental  procedure,  248. 

Sale  of  real  estate,  249. 

Selection  of  guardian,  250. 

Sale  made  without  selection  of,  250. 

Guardian  for  widow  may  answer  in  dower,  489. 

Procedure  for  sale  of  joint  interest  of  wards,  251. 

Petition  by  guardian  for  sale  of  real  estate,  and  what  it  must  contain, 

252. 
As  to  description  of  real  estate,  252,  252  note. 
Notice  to  parties,  253. 
Hearing  on  petition,  254. 
Appraisement,  254. 
Survey  of  town  lots,  254. 
Guardians  ad  litem  for  infants,  255. 
Oath  of  appraisers — Sale  of  real  estate,  250. 
Bond,  additional,  257.- 
Who  may  be  surety  on,  258. 
Bonding  company  may  be  paid  as  costs,  258. 
Order  of  sale,  259. 
Terms  of  sale,  259. 
Notice  of  sale,  259. 
Private  sale,  259. 

Amount  for  which  sale  may  be  made,  259. 
Report  of  sale,  260. 
Confirmation  of  sale,  200. 
Deed  to  purchaser,  200. 
To  pay  tax,  when.  400. 

Gnariiian — Forms  for — 

Procedure  in  sale  of  real  estate  by  guardian,  Nios.  163  to  199. 

Petition  to  sell  insane  ward's  real  estate.  No.  163. 

Entry  fixing  time  for  hearing,  No.   164. 

Notice  to  defendants,  No.  105. 

Return  of  service  of  notice,  No.  100. 

Order  for  notice  by  guardian,  No.  167. 

Affidavit  in  proof  of  notice,  No.  168. 


774  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.! 

Guardian — Forms  for — ■Continued. 
Waiver  of  summons,  No.   108. 
Answer  of  disclaimer.  No.  170. 
Order  appointing  appraisers,  No.  171. 
Order  approving  appraisement.  No.  173. 
Order  for  bond,  No.   173. 
Order  approving  bond.  No.  174. 
Order  of  sale,  No.  174,  175. 

Proof  of  publication  of  notice  and  form  of  notice  of  sale,  No.   175. 
Guardian's  sale,  No.  17<i. 
Guardian's  return,  No.  170. 
Order  confirming  sale,  No.   170. 
Order  for  deed,  No.  178. 
Additional  bond.  No.  178. 
Guardian's  deed  to  purchaser,  No.   170. 

Procedure  for  private  sale  of  ward's  real  estate,  Nos.  180  to  192. 
The  petition.  No.  180. 
Summons,  service  and  return,  No.  181. 
Application  for  guardian  ad  litem.  No.  182. 
Appointment  of  guardian  ad  litem,  No4   183. 
Answer  of  guardian  ad  litem,  No.  184. 
Order  for  appraisement,  No.  183. 

Appraisement,  oath  of  appraiser  and  return  of  by  guardians,  No.  186. 
Additional  bond,  No.  187. 
Confirmation  of  appraisement,  No.  187. 
Application  to  sell  real  estate  at  private  sale,  No.  188. 
Affidavits  for  order  at  private  sale.  No.  188. 
Order  to  sell  real  estate  at  private  sale,  No.  180. 
Guardians,  proceedings  under  order  to  sell  real  estate  at  private  sale, 

Nos.  190,  191. 
Order  confirming  sale,  ordering  deed  and  distribution,  No.  192. 
Another  form  for  petition.  No.  103. 

Another  form  for  answer — Widow  setting  up  dower,  Nos.   104,  197. 
Order  appointing  trustee  for  insane  defendant.  No.  195. 
Answer  of  trustee  for  insane  defendant,  No.  190. 
Order  court  substituting  appraiser.  No.   108. 
Order  setting  aside  an  erroneous  appraisement,  No.   199. 

Guardian  ad  litem — 

In  what  instances  must  be  appointed.  39. 

Duties  of,  39. 

Penalty  for  failure  to  perform  duty.  39. 

Compensation  of,  39. 

Taxed  as  costs.  39. 

The    answer    to    deny,    what,    39. 

For   general    forms   of    answer,   see    subject.   "Forms." 

Appointment   made  upon  whose  application.  39. 


index.  775 

[Figures  preceded   by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Guardian    ad   litem — Continued: 
At  what  time  made,  39. 
The  nature  of  the  service  of,  40. 

Duties  not  like  guardian  of  the  person,  40. 
Nothing  to  do  with  property  of  ward,  40. 

Powers  of  as  to  waiver  of  summons  and  entry  of  appearance,  40 
Defense  a  real  defense,  41. 
Not  a  mere  matter  of  form,  41. 

Required  to  do  more  than  file  answer   in  case,   41. 
His  duty  as  to  preparation  of  defense,  41. 
Instances  where   proper   defense   was  not    made,   41. 
Defective  titles  caused  by  improper  defense  of  infant.  41. 
Guardian  ad  litem  required  in  sale  of  real  estate,  44. 
In  sale  of  real  estate  by  administrator  to  pay  debts,  45. 
When  need  not  be  appointed  in.  45. 

Appointed  in   proceedings  to  sell   an  entailed  estate  in,   197. 
Form  for  appointment  in  proceedings  to  sell  lands  to  pay  debts,  X.,.  103. 
Form  for  answer  of  proceedings  to  sell  lands  to  pay  debts,  No.   104. 
Form    for   appointment    of    in    proceedings   to    sell    ward's    real    .state 
No.  182. 

Form    for    answer   of    in    proceedings    to    sell    ward's    real    estate     X,, 
183. 

No   power  to  consent  in  action  by  administrator  to  sell  to  pav  debts 
222. 

Form  for  appointment  of  in  proceedings  to  assign  dower,  Nos.  308.  37'.:. 
Form  for  answer  of,  in  proceedings  to  assign  dower,  Nos.  369,  381. 
To    be    appointed    in    condemnation    proceedings,    512. 


H 


Hamilton    county — 

Delinquent  tax  in,  412. 


Heir- 
May  have  action  to  complete  decedent's  contract,  when,  610. 
Election  to  take  real  estate  at  appraisement.  317. 
Absence  for  seven  years  presumption  as  to.  330. 
Of  decedent  may  assign  power  to  widow.  474. 

May   prevent   administrator-executor   from   selling   decedent's    real   es- 
tate, when,  219. 

Homestead — 

Nrt  srbj-°ct  to  levy  under  execution,  92. 

Hoiik  stead,  assignment  in  sale  to  pay  debts,  230. 

Allowed  in  addition  to  dower,  467. 


77()  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections,} 

House — 

Lien  allowed  for  removing,  altering,  repairing,  ete.,  377. 

Hotch-potch — 

In  partition,  337. 

Hospitals — 

Condemnation   proceedings,  for,   505. 


I 
Improvements — 

Parties  to  be  paid  for,  594. 
Nature  of  the  title  required,  594. 

Injunction — 

Allowed  in  condemnation  cases,  when,  558. 
In  action  to  quiet  claim.  578. 

Insolvency    court — 

When  proceedings  to  condemn   real   estate  for  municipal    purposes  to 
he  brought  in,  508. 
I      ane — 

Appropriation  of  property  by  condemnation  proceedings,  523. 

Idiot- 
Appropriation  of  property  in  eminent  domain,  423. 

Imbecile — 

Property  of  in  condemnation  proceedings,  523. 

Interpleader — 

In  condemnation  proceedings,  515. 

Insane — 

Form  for  application  for  trustee  to  defend  for,  No.  142. 

Form  for  order  of  court  appointing  trustee   to  defend  for,  Nos.    143, 

195. 
Form  for  answer  of.  Nos.   145,  190. 
Dower  of  insane  person  released,  how,  491,  492,  493,  494,  495,  49P. 

Insurance    company — 

Service  of  summons  on.  36. 

See  subject,  "Service  of  Summons." 


index.  777 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 
Infants — 

Conduct  of  the  defense  of,  .'!!•. 

Rights  of.   reserved   in   judgment,   72.   7:5.  42. 

When  may  show  cause  against  order  or  judgment,  42. 

When  order  or  judgment   against   infant    may  l>c   vacated,  42. 

Revivor  of  judgment  as  to,  7.5. 

Index — 

Direct  and  reverse  as  to  judgments.  88. 
Duty  of  clerk  as  to.  88. 
Alphabetical   arrangement    of.   ss. 
Xante  of  judgment  debtor,  88. 
Name  of  judgment  creditor,  88. 
Amount  of  judgment,  88. 


J 

Judgment — 

Offer  to  confess  in  condemnation  eases,  516. 

And    execution    on    verdict    for    plaintiff    under    occupying    claimant's 
law.  600. 

Judgments,   orders  and  decrees- 
Defined,  58. 
Order  defined,  58. 
Logical  definition,  58. 
Definition  :'ncludes  final  decrees.  58. 
Common  law  definition,  58. 
Effect  of  oral  opinion  at  common  law,  58. 
To  be  recorded,  58. 
Time  and  manner  of  recording,  58. 

Points  of  difference  between  judgments  and  decrees,  58. 
Final  or  interlocutory,  defined,  58. 
To  be  confined  to  the  issues,  59. 
General  discussion,  59. 
Care  as  to  in  titles,  59. 
Issues  must  state  a  cause  of  action,  59. 
Not  so  perfect  as  to  withstand  a  demurrer,  59. 
Without  jurisdiction  of  parties,  void,  60. 
Without  jurisdiction  of  subject  matter,  60. 
Without  day  in  court,  void.  60. 

r>ee  subjects,  "Jurisdiction."  "Service  of  Summons." 
Defendant  must  be  served  with  summons,  60. 
Allegation  of  petition  as  to  interest  of  defendant,  60. 
Care  as  to  service  on  infants.  60. 
See  subjects,  "Guardian  ad  litem,"  "Infancy." 


778  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Judgments,    orders    and    decrees — Continued. 

No  presumption  to  aid  records  as  to  rights  of  infants,  00. 

See  Forms  Ncs.  1!)5  and  196  as  to  defense  of  an  insane  person  not  under 

guardianship. 
Jurisdiction  of  court  as  to  subject  matter,  60. 

See  subject,  "Waiver  of  Summons  and   Entrance  of  Appearance." 
Collateral  attack  of,  61,  04,  106. 
Direct  attack  defined,  61. 
Collateral  attack  defined.  61. 
What  is  not  a  collateral  attack,  61. 
Final  as  between  parties.  02. 
Res  judicata,  62. 
Principle  of,  62. 
Finding   of  facts  giving  jurisdiction  not   subject  to  collateral   attack, 

63. 
Principle  a  rule  of  property,  63. 
Need   not   look   behind    clerks',   sheriffs',   courts'   or   attorneys'  acts  to 

discover  error,  63. 
Import  absolute  verity,  03. 
Voidable  and  void,  64. 
Title  under  void  and  voidable.  04. 
Equity  may  set  aside,  when,  64. 
Caveat  emptor  as  to  judicial  sale  defined,  65. 
Vacated  during  term,  68. 
Vacated  for  irregularity,  68. 
Vacated  for  misconduct,  68. 
Vacated  for  accident  or  surprise,  68. 
Vacated  for  excessive  damages,  68. 
Vacated  when  not  sustained  by  evidence  and  contrary  to  law,  and  for 

newly  discovered  evidence,  68. 
Vacated  for  error  of  law  at  time  of  trial,  68. 
Vacated   after  term   by   petition,   69. 
Grounds  for  vacation  of  after  term,  69. 
Voidable  binding  until  set  aside,  69. 
May  be  set  aside  under  old  equity  remedy,  69. 
Equity  may  correct,  when,  69. 
Reservation  of  rights  of  infants  in,  72. 
Infants  may  show  cause  against,  72. 

Bona  fide  purchaser  under,  not  affected  by  rights  of  infant,  when,  73. 
Revivor  of  dormant  judgment.  74,  75. 
Procedure  in  revivor  of  dormant   judgment.  74. 
Limitation  as  to  revivor  of,  75. 
New  parties  as  to  revivor  of,  76. 

Revivor  of  in  circuit  court  remanded  to  common  pleas  for  execution,  76 
Revivor  as  to  partnership.   70. 
Parties  to,  77. 
Against  defendants  at  different  times,  77. 


index.  779 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Judgments,    orders    and    decrees — Continued. 

As  to  one  defendant  as  continuance  as  t<>  others,  77. 

to  operate  as  a  conveyance,  77. 

Decree  of  conveyance  of  land  outside  of  jurisdiction  of  court,  78. 

Decree  of  conveyance  enforced  In   attachment,  78 

Against  married  women,  7!'. 

To  be  entered  in  conformity  to  verdict,  80,  81. 

Motion  for  trial  as  to  verdict,  80. 

To  be  entered  against  verdict,  82. 

To  create  lien  must  be  entered  on  journal,  83. 

Power  of  courts  to  correct,  during  term,  83. 

To  be  indexed,  when,  88. 

In  what  book  to  be  entered,  88. 

To  be  alphabetically  arranged,  88. 

Attaches  to  land,  94. 

Extent  of,  94. 

Attaches,  when,  94. 

By  confession  attaches,  when,  94. 

Lien  of  statutory,  94. 

Equity  can  not  cure  defective  lien,  94. 

No  lien  for  decree  unless  money  only,  94. 

For  alimony,  94. 

Against  selling  intoxicating  liquors  and  gamblers,  94. 

Lien  in  circuit  court,  U.  S.,  a  lien  in  State  courts,  94. 

Lien  against  railroad  in  Federal  courts  a  lien  on  right  of  way,  etc.,  94. 

Lien  coextensive  with  jurisdiction  of  court,  94. 

Lien  in  superior  court,  Cincinnati,  coextensive  with  Hamilton  Count v 

94. 
Land  out  of  county  bound  from  seizure,  94.  * 

Of  supreme  court  binds  lands,  when,  95. 
Lien  if  not  divested  by  appeal  or  error,  95. 
From  justice  make  lien,  how.  96,  97. 
From  mayors'  courts  make  lien,  how,  96,  97. 
Becomes  dormant,  when,  99. 
How  kept  alive,  99. 

Lien  of  restricted  to   two-thirds  of  value  of  real  estate,   109. 
Preference  of  lien  under,  lost,  when,  131. 
How  entered  against  principal  and  surety,  135. 
Receiver  appointed  to  carry  into  effect,  290. 

Jointure — 

Character,  463. 

History  of,  463. 

Essential  elements,  463. 

See   subject.   "Dower." 

Parol   agreement  as  to.  enforced  in  equity,  4<">:t. 


780  INDEX. 

[Figures  preceded  Ly   "No."  refer  to  Forms;  otherwise  to  Sections.] 

Joint   stock    company — 

Served  by  summons,  how,  35. 

Service  on,  rule  in  Ohio,  35. 

See  subject,  "Service  of  Summons." 

Jurisdiction — 

What  is,  18. 

When  complete,  18. 

Litigants  subject  to,  when,  18. 

As  to  non-residents,  18. 

Foreign  corporations  subject  to,   18. 

Subject  matter,  59. 

Parties,  59. 

Parties  before  the  court,  59. 

Judicial    sale— 

Caveat  emptor  applies  to,  65. 

Bidder  to  search  records  before  sale,  65. 

Purchaser  at  acquires  interest  of  judgment  debtor  only,  65. 

Bone  fide  purchaser  at,  65. 

Defective  title  at,  65. 

Bidder   subject   to   equity,   when,    65. 

Made  under  void  judgment,  unaffected  by  sale,  65. 

Purchasers  at,  protected  by  recording  statute,  67. 

Effect  of  when  set  aside  or  reversed,  70. 

Purchaser  protected  when  judgment  or  decree  set  aside,  70. 

Statute  to  protect  bidders,  under,  70. 

Protection  of  statute  does  not  apply  to  a  stranger  to  the  action,  70. 

Remedy  of  purchaser  at  invalid  sale,  71. 

Purchaser  under  subrogated,   71. 

Bona  fide  purchasers  at,  protected,  71. 

Jury — 

Eminent   domain.   511. 

Ejectment  triable  by  jury,  591. 

Forms  for   in  condemnation  proceedings,  Nos.  399,  400,   401,  402,  403, 

406. 
May  be  had  in  the  action  to  quiet  title.  577. 
Form  of  verdict  of  in  foreclosure  of  mechanic's  lien.  No.  333. 
Form  for  verdict  of  in  trial  of  issues  in  attachment.  No.  61. 
Claim  for  improvements  under  occupying  claimant's   law.  597. 
Talesmen  in.  597. 

View  <»f  in  under  occupying  claimant's  law,  507. 
Setting  aside  verdict  of  in  occupying  claimant's  law,  599. 
Challenge  of.  599. 
Will  contest   tried  by  jury,  till. 
Jury  can  not   pass  on  part  of  will  only,  611. 


INDEX.  781 

[Figures  preceded  by  "No."  refer  t<>   Forms;  otherwise  to  Sections.] 

Justice    of    peace — 

^\Iay  appoint  to  fill  vacancy  in  appraisers'  gale  to  pay  debts,  'I'M. 

L 

Land    contract — 

See   subject,  "Completion  of  Decedent's   Land   Contract." 

Loss — 

Receiver  appointed  to  prevent  loss  of,  290. 

Levy — 

See  subject,  "Execution,  Sales." 

What  property  subject  to,  92. 

What  property  not  subject  to,  92. 

On  property  encumbered  by  prior  liens,  92. 

Lien  may  be  levied  on,  92. 

Ownership  true  test  for,  92. 

Homestead  not  subject  to,  92. 

Goods  and  chattels  subject  to,  92. 

Trust  estate  not  subject  to,  92. 

See  also  "Executions." 

Procedure  as  to  prior  liens,  92. 

Of  property  under  bailment,  92. 

Of  property  under  conditional  sale,  92. 

Of   property   fraudulently   conveyed,   92. 

Of  property  attached,  92. 

Of  partnership  property,  93. 

Lis  pendens — 

When  third  persons  are  charged  with  notice  of  suit,  56. 
As  to  suits  in  other  counties,  57. 
Record  of  judgment  in  other  county,  57. 

As  to  mortgage  of  real  property — Not  part  of  an  entire  tract  in  more 
than  one  county,   11. 

Liens — 

Petition  to  marshal,  92. 

Procedure  as  to,  92. 

Transferred  to  funds,  when,  92. 

Order  of  sale  free  of,  92. 

Judgment  of  attaches  to  what   lands,  94. 

Extent   cf  judgment   lien,   94. 

Attaches  to   judgment,  when.  94. 

Judgment  by  confession,  lien  of,  94. 


782  INDEX. 

[Figures  preceded  by  "No.-  refer  to  Forms:  otherwise  to  Sections.] 

Liens —  Co  id  in  ued. 

Judgment  lien  statutory,  94. 

Lquity  will  not  curt'  defect  in  judgment  lien,  !>4. 

No  lien  for  decree,  unless  for  money  only,  94. 

For  alimony  judgment,  94. 

For  judgment  against  sellers  of  intoxicating  liquors  and  gamblers,  94. 

For  judgment  in  United  States  courts,  lien  in  S+atc  courts,  \n 

For  judgment  against   railway  in   Federal  cunts,  lien  on  road\  ay  and 

right  of  way,  94. 
Of  judgment  coextensive  with  court,  94. 

Of   judgment  of   superior  court   of   Cincinnati    coextensive    \\i'>     Ham- 
ilton county,  94. 
Of  judgment  on  lands  out  of  county  bound  from  seizure,  94. 
Foreign  execution,  94. 

Of  foreign  execution  dates  from  when,  94. 
Of  judgment  of  supreme  court,  95. 
Of  judgment  not  divested  by  appeal  on  error. 
Judgment  of  justice  made  lien,  how,  95. 

Judgment  restricted  to  two-thirds    of  value  of  real  estate,  109. 
Of  judgment  lost,  when,  131. 
Foreclosure  of  mortgage  lien,  3G3. 
Foreclosure  of  tax  lien,  375. 
Foreclosure  of  mechanic's  lien,  397. 
See  subject,  "Mechanic's  Lien." 
Se-   subjects,  "Mortgage,"   Execution,"  "Levy,"   "Attachment." 

Libraries — 

Real  estate  condemned  for,  505.  * 

Lease — 

Sale  of  for  tax,  450. 

Liquors — 

Judgment  against  sellers  of,  94. 


M 

Market    places — 

Condemnation  proceedings  for,  505. 

Magna    Charta — 

Provision  for  dower  in,  452. 

Marriage — 

Necessary  to  create  dower,  459. 
License  to,  459. 
Common  law,  459. 


i.\    EX.  "^3 

[Figures  preceded  •>>    "No."  refer  to  Forms;  otherwise  to  Sections.] 

^Manufactory — 

Lien  allowed  for  erecting,  altering,  etc.,  377. 

Marshaling    liens— 

Petition    to    marshal    liens   and   to    sell    lands   fraudulently   conveyed, 
No.  23. 

Mechanic's   lien — 

Origin  and  nature,  375. 

Waiver  of  right  to  assert.  370. 

Allowed  for  what,  377. 

Buildings  on  contiguous  lots,  378. 

Contractor  to  defend  action  to  enforce  lien,  379. 

Owner  or  proprietor  includes  what,  380. 

Lien  acquired,  how,  380. 

Notice  required,  380. 

Filing  of,  380. 

Affidavit  for.  380. 

Itemized  statement,  380. 

Recorded  how,  380. 

Limitation  as  to,  380. 

Requirement  for  lien  on  roads,  streets,  sewers,  ditches,  381. 

Liens  pro  rata,  when,  381. 

Owner  may  require  suit  begun  on,  when,  382. 

Subcontractor's  lien.   384. 

Acquired,  how.  384. 

Executor's  rights  as  to,  383. 

Administrator's  rights  as  to,  383. 

Married  women's  rights  as  to,  383. 

Owner's  duty  to  retain  payments,  when,  385. 

Notice  as  to.  385. 

Notice  to  fellow  laborers,  386. 

Statement  filed  with  recorder,  386. 

Payments  pro  rata,  when,  387. 

Copy  of  statement  to  be  furnished  head  contractor,  388. 

His  duty.  388. 

Priority  of  liens,  388. 

Subcontractor's  remedy,  380. 

Subcontractor's  lien,  3!)0. 

How  obtained,  390. 

Priority  over  head  contractor,  391. 

Priority  as  to  attachments,  391. 

Priority  as  to  assignments,  391. 

Fraud  and  collusion  in   payment  of  principal  contractor.  302. 

Sheriff  may  serve  notices,  affidavits,  etc.,  393. 

Remedy  when  owner  suspends  work   without   their   consent,   394. 


784  INDEX. 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise   to  Sections.] 

Mechanic's    lien — Con  I  inued. 

Laborers  to  have  lien  on  other  property,  when,  395. 
Precedence  of  lien.   395. 
Waiver  of,  3515 
Priority,  395. 

Forms — Mechanic's    lien— 

For  the  lien,  No.  327. 
For  petition  to  foreclose  lien,  No.  328. 
For  precipe  and  summons,  Nos.  329,  330. 
For  answer  and  cross-petition,  No.  331. 
For  reply.  No.  332. 
For  verdict  of  jury,  No.  333. 
For  motion  to  set  aside  verdict,  No.  334. 

For  order   of   court   overruling   motion    and   ordering    sale   of    real    es- 
tate, No.  335. 
For  order  of  sale  from  clerk  to  sheriff,  No.  336. 
For  sheriff's  procedure,  No.  337. 
For    appraisement.  No.  337. 

For  oroof  of  publication  of  legal  notice.  No.  330. 
For  sheriff's  return.  No.  341. 
For  confirmation  of   sale,  No.   342. 
For  order  for  deed  and  distribution,  342. 
For  sheriff's  deed,  No.  343. 

Mill- 
Lien  allowed  for  erecting,  altering,  etc..  377. 

Mortgage— 

Eeceiver  may  lie  appointed  in  foreclosure  of,  200. 

Can  not  be  foreclosed  after  assignee  is  appointed,  276. 

Sale  of  mortgaged  property  in  assignments.  282. 

Wife  joins  in  mortgaged  property  in  assignment  procedure,  283. 

Release  of  liens  in  assignments.  285. 

For  deferred  payments  in,  287. 

Execution  and  acknowledgment,  363. 

Who  may  take  acknowledgment.  363. 

The  lien  of,  364. 

Recording,  364. 

Recorder,  duties  of,  364. 

Assignment  of  note,  effect  of,  365. 

Assignment  of  several  notes,  365. 

Mortgage  an  incident  of  debt,  365 

Chose  in  action,  365. 

Remedies  of  mortgagee,  366. 

Foreclosure,  366. 


INDEX.  785 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Mortgage — ( 'on  I  in  ued. 
Ejectment,  •>•><>. 
Personal  judgment,  300,  368. 
Limitation  in  action  on,  366. 

Why  care  should  he  used  in  form  of  remedy,  360. 
Venue  of  the  action,  367. 

Legal  rights  and  duties  of  one  who  assumes  a  mortgage,  56!t. 
Foreclosure  in  default  in  payment  of  one  of  several  notes.  :\Tt). 
Default  in  payment  of  interest,  370. 
Jurisdiction    in  foreclosure,  371. 
Assignee  lias  right  to  foreclose,  371. 
Executor  or  administrator,  when,  371. 
Receiver  in,  372. 

Appraisement  of  property  in  foreclosure,  373. 
Property  sold  on  time,  373. 
Terms  of  sale,  373. 
Procedure  in  foreclosure  of,  374. 

Mortgage — Fornis  in  foreclosure  of— 

Petition  in.  No.  307. 
Summons  and  return  of,  No.  308. 
Motion  for  trustee  for  insane  defendant,  No.  310. 
Affidavit  in  proof  of  insanity,  No.  311. 

Order  appointing  trustee  to  defend  for  insane  person.  No.  312. 
Answer  of  trustee.  No.  313. 
Decree  in.  No.  314. 
Order  of  sale  to  sheriff,  No.  315. 

Appointment  of  appraisers  and  their  oath,  No.  310. 
Report  of  appraisers,  No.  317. 
Proof  of  publication.  No.  318. 
Legal  notice  of  sale,  No.  319. 
Sheriff's  return  of  sale,  No.   320. 

Confirmation  of  sale,  order  for  deed  and  distribution.  No.  321. 
Sheriff's  deed.  No.  322. 

Petition  where  mortgage  has  been   assumed,    NO.   323. 
Another  form  for  petition.  No.  324. 

Form  for  petition  asking  reformation  of  mortgage,  foreclosure  and  mar- 
shaling liens,  No.  352. 
Petition  to  declare  deed,  mortgage  and  to  foreclose  same.  No.  326. 

Motions — 

For  new  trial.  SO.  , 

See  subject.  "Forms." 

To  set  aside  service  of  summons,  31. 

Not  to  constitute  entrance  of  appearance,  when.  31. 

To  set  aside  appraisement,  105. 


786  INDEX. 

[Figures  preceded  by  "No."  to  Forms;  otherwise  to  Sections.] 

Motions — ( 'o  ii  i  in  tied. 

Motion  for  relief  officers  levying  on  wrong  property,  129. 
To  amerce  sheriff  for  failure  to  perform  duties,  14(1. 
To  set  aside  judgment  and  order  of  sale  in  attachment  from.  No.  57 
To  set  aside  verdict  in  attachment  ease  and  for  new  trial,  No.  62. 
To  confirm  sale  and  apportion  costs  in  action  on  judgment  to  set  aside 
deed  and  marshaling  liens.  No.  32. 

N 

New    trial — 

Motion  as  to,  80. 

Verdict  set  aside,  80. 

See  title.  "Judgment." 

Proceedings  for  in  condemnation  cases,  544. 

Allowed,  when,  (38. 

Allowed  at  same  time,  08. 

Allowed  after  term,  69. 

Notice — 

Manner  of  in  condemnation  proceedings,  507. 

To    idiot,   minor,    imbecile  or   insane   person    in   condemnation    proceed- 
ings, 523. 

Notice — Forms   of — 

Sheriff's  sale  under   vendi  exponas.  No.   10. 

Sheriff's  sale  of  real  estate  to  satisfy  judgment,  No.   30. 

For  legal  notice  of  sheriff's  sales,  see  Nos.  44,  285,  319,  340,  352. 

o 

Orders — 

See  subject,  "Judgments." 

Attachment  order  of  in,  No.  31. 

Order  approving  service  by  publication.  No.  53. 

Of  sale  in  attachment.  No.  56. 

Older  sustaining  motion  for  new  trial  in  attachment,  No.  58. 

Order  confirming  sale  in  attachment,  No.  C>H. 

Order  of  distribution   in.  No.  6S. 

Of  sale  in  proceedings  to  sell  entailed  estates,  Nos.  12.  86. 

Appointing  trustee  in  proceedings  to  sale  entailed  estates,  Nos.  77,  86. 

See  subjects.   "Sheriffs."  "Confirmation."  "Distribution."  "Returns." 

Oath— 

Of  jury  in  condemnation  proceedings.  535. 


INDEX.  787 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise    to  Sections.] 

Oil    well— Oil    derrick- 
Lien  allowed  for  labor  and  material  for,  377. 


P 

Parks — 

Condemnation  proceedings  for,  505. 

Parties — 

In  action  for  sale  of  an  entailed  estate,  195. 

In  the  action  by  an  administrator  to  sell  real  estate  to  pay  debts,  217. 

Partition — 

Nature  of  proceeding,  295. 

Equitable  and  statutory,  both.  295,  295    note. 

Power  of  chancellor  in  equitable   partition,  295,  295  note. 

Amicable  partition,  2'i'i. 

Effect  of  amicable  partition.  291J    note. 

May  by  parol,  when,  297,  297    note. 

Written  agreement  for  partition,  298. 

Tenant  can  not  effect  partition  by  deed,  299. 

Interest  conveyed  by,  299  not< . 

Joint  tenancy,  300,  300  note. 

Disputed  title  in,  301. 

May  not  substitute  for  ejectment.  301. 

Will  may  be  construed  in,  302. 

Course  of  descent  may  be  construed  in,  302. 

Creates  no  new  titles,  303. 

Ancestral  quality  broken,  when,  in  partition,  303. 

Rule  of  construction  as  to  title  in,  303. 

Proceeding  operates  on  possession,  303. 

Construction  of  mutual  releases,  304. 

Applicant   must    be   in    possession.   305. 

Reversioners  nor  remainders  can   have,  305.  307.  307  note. 

Not  an  alternative  remedy  with  ejectment.  305. 

Nature  of  possession  required,  300,  306  note. 

Rule  as  to  life  tenant,  300. 

Life  tenant  and  remainderman  joining  in  demand,  306. 

Allegations  and  proof  of  title  of  demandant,  308. 

Who  may  have,  309. 

Who  may  not  have,  310. 

Where  action  to  be  brought,  310. 

Who  may  file  for,  311. 

The   order   for.    312. 

Appraisers  in.  312. 

Appraisers'  fees,  312. 


788  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Partition — Continued. 

Auctioneer  in  sale,  312. 

Writ  of,  313,  313  note. 

Commissioners  in,  314,  314  note. 

Several  tracts,  315,  315  note. 

Lands  not  capable  of  division  to  be  appraised,  316. 

Election  by  heir  to  take  at  appraisement,  316. 

Title  to  heir  by  descent  and  by  purchase,  316. 

Terms   of  payment   in    sale  of,  316. 

Execution  of  conveyances  in,  317. 

Deferred  payments,  317. 

Sale  in  case  no  election  of  heir  to  take  at  appraisement,  318. 

Conduct  of  sale,  319. 

Term*  of  sale,  319. 

Confirmation  of  sale,  320,  320  note. 

Distribution  of  proceeds,  321. 

Sheriff's  liability,  321. 

Notes  and  securities  in  belong  to  heirs,  321,  321  note. 

Proceedings  when  property  offered  and  not  sold,  322. 

Sale  made  without  valuation,  322. 

Successor  to  sheriff  to  execute  deed,  323. 

Dower  in,  323. 

Appraisement  subject  to  dower,  323. 

Dower  in  case  of  death  of  widow  during  proceeding,  323. 

Not  estopped  to  claim  dower,  when,  324,  324  note. 

Commissioners  may  assign  dower,  325. 

Guardian's  power  to  sell  for  ward,  326,  326  note. 

Eoreign  guardian,  power  of}  327. 

Crops  in  partition,  329. 

Absence  of  heir  seven  years,  presumption  as  to,  330. 

Allowance  as  to  improvements,  331. 

Religious  corporations  may,  331,  332. 

Costs  and  expenses  taxed,  how,  333. 

Counsel  fees  taxed  in,  333. 

Rights  of  administrator  in,  334. 

Court  to  order  proceeds  to  be  paid  to  administrator,  when,  335. 

May  not  be  had  until  one  year  from  decedent's  death,  336. 

May  have  at  once,  when.  336. 

Advancements  in,  337,  338,  339,  340,  341. 

Hotch-pot  in,  337. 

Judgments  in  not  subject  to  collateral  attack,  342. 

Lien  against  cotenant  before  suit  attaches  to  share  aparted  to  him,  343. 

Rights  of  parties  paying,  his  share  of  tax  on  lands,  344. 

Purchaser   of  interest   at   tax   sale   may   have,   345. 

Appeal  and  error  in,  340. 


index.  ?89 

[Figures  preceded  by  "No."   refer  to  Forms:  otherwise»to  Sections.] 

Forms — Partition — 

Partition  in  and  to  quiet  title,  Xo.  256. 

Precipe,  No.'  257. 

Summons  in.  No.  258. 

Sheriff's  return,  No.  259. 

Answer  for  guardian  of  infant  in,  No.  2(i0. 

Waiver  of  summons  in,  No.  261. 

Answer  of  widow  as  to  her  dower.  No.  262. 

Motion  for  guardian  ad  litem,  No.  20,3. 

Order  appointing  guardian  ad  litem,  No.  204. 

Answer  of  guardian  ad  litem,  No.  265. 

Decree  for  partition,  No.  200. 

Writ  from  clerk  to  sheriff,  No.  207. 

Commissioner's  report,  No.  268. 

Sheriff's  return  in,  No.  209. 

Election  to  take  at  appraisal,  No.  270. 

Confirmation  of  sale,  order  for  deed  and  distribution,  No.  271. 

Sheriff's  deed  in,  No.  272. 

Writ  where  property  can  not  be  divided,  No.  27.'}. 

Sheriff's  return  under,  No.  274. 

Commissioner's  report  under  order  of  sale  in,  legal  notice.  No.  275. 

Publication,  sheriff's  return,  No.  276. 

Petition  for  and  for  accounting  for  rents  and  profits,  No.  278. 

Petition  for  equitable  partition  and  to  adjust  advancement,  No.  270. 

Petition  for  by  guardian,  No.  280. 

Answer  in,  No.  281. 

Cress-petition,  setting  up  mortgage,  No.  282. 

Order  for  publication  for  unknown  heirs,  No.  283. 

Legal  notice  for  unknown  heirs,  No.  284. 

Legal  notice  for  sale  of  real  estate  by  sheriff,  No.  285. 

Certificate   to   probate   court,   No.   286. 

Entry  allowing  application,  No.  287. 

Certificate  under  previous  order,  No.  288. 

Motion  of  administrator,  asking  for  fund  to  pay  debts,  No.  289. 

Entry  sustaining  such  motion,  No.  290. 

Proof  of  publication  in,  No.  291. 

Legal  notice  and  service,  by  publication  in,  No.  292. 

Affidavit  for  service  by  publication,  No.  293. 

Report  of  commissioners  assigning  dower  by  metes  and  bounds,  No.  294. 

Assignment  of  dower  in  rents  and  profits,  No.  295. 


Parol  evidence- 
See  subject,  "Deed." 
To  show  mistake  in  appraisement,  106. 


790  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Partnership — 

Revivor  of  judgments   against,   76. 

Where  action  of  replevin  against  may  be  brought,  29. 

Service  of  in  attachment.  29. 

8ee  subject,  "Service  of  Summons." 

Levy  on  firm  property,  92. 

Court    of   equity    invoked    as   to   levy   on    property    of,    93. 

Right  of  surviving  as  to  levy  on  property  of,  93. 

Right  of  levying  creditor  as  to  levy  on  property  <.f,  U'.i. 

Priority    of    firm    creditor    over    creditors    of    the    individual    members 

of  firm,  93. 
When  creditor  may  have  receiver  of  partner's  interest,  290. 
Dower  in  partnership  realty,  464. 
Partnership  realty  regarded  as  personalty,  when,  464,  464  note. 

Petition — 

Should  contain  what,  2. 

Ordinary  and  concise  language,  2. 

Relief  asked,  2. 

Caption  in,  3. 

Parties  named  in,  3. 

Allegations  of  an  action  to  sell  an  entailed  estate,   195. 

Allegations  of  in  the  action  by  an  administrator  to  pay  debts,  219. 

Allegations  of  in  sale  of  ward's  real  estate  by  guardian,  252. 

As  to  filing  of  by  assignee,  275. 

Under  which  receiver  is  appointed  for  a  corporation,  223. 

In  partition,  who  may  file,  311. 

By  religious  society,  for  sale  or  incumbrance  of  real  estate,  348. 

For  dower,  476. 

To  discharge  dower  of  an  insane  person,  491. 

In  condemnation  proceedings,  524. 

For  vacation  of  street  or  alley,  562. 

Allegations  of  in  the  action  to  quiet  title,  572. 

Petition — Forms  for — 

Petition  in  cognovit,  No.  1. 

Petition  on  note,  No.  14. 

Petition  to  set  aside  fraudulent  deed,  No.  23. 

Petition  for  sale  of  real  estate  upon  levy  made  under  foreign  execu- 
tion, No.  35. 

Petition  on  promissory  note  under  which  attachment  is  issued.  No.  48. 

Petition  for  sale  of  entailed  estate,  Nos.  70,  84. 

Petition  by  an  administrator  to  sell  land  of  decedent  conveyed  by  him 
in  fraud  of  creditors,  common  pleas  court,  No.  94. 

Petition  by  administrator  to  sell  decedent's  lands  to  pay  debts,  No. 
116. 


INDEX.  791 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  t'>  Sections.] 

Petition — Forms    for — Continued. 

Petition  by  guardian  to  sell  real  estate  of  an  insane  ward,  No.  163. 

Petition  by  guardian  to  sell  ward's  real  estate,  Nos.  180  and  193. 

Petition  for  sale  of  real  estate  by  an  assignee  for  the  benefit  of  cred- 
itors, No.  202. 

Petition  in  the  action  in  which  a  receiver  is  a;  p  anted,  No.  223. 

Petition  in   partition  and  to  quiet  title.  No.  i.">0. 

Petition  for  partition  by  guardian,  No.  280. 

Petition  for  sale  and  exchange  of  church  property,  No.  200. 

Petition  asking  for  sale  and'encumbrance  of  church  pn  perty,  No.  ;><>-2. 

Petition  for  foreclosure  of  real  estate  mortgage,  No.  307. 

Petiton  for  same  where  grantee  in  deed  assumes  mortgage,  Nos. 
323  and  324. 

Petition  for  reformation  of  mortgage,  foreclosure  and  marshaling  of 
liens.  No.  325. 

Petition  to  declare  a  deed  a  mortgage,  and  to  foreclose  same.  No.  326. 

Petition  for  foreclosure  of  a  mechanic's  lien,  No.  32S. 

Petition  for  foreclosure  of  tax  lien,  No.  344. 

Petition  by  treasurer  to  foreclose  tax  and  assessment  lien,  No.  360. 

Petition  for  assignment  of  dower,  No.  305. 

Petition  by  husband  for  sale  of  real  estate,  free  of  dower  of  insane 
wife,  No.  375. 

Petition  by  a  municipal  corporation  to  condemn  real  estate  for  public 
purposes.  No.  388. 

Petition  of  a  railway  company  for  the  appropriation  of  private  prop- 
erty, No.  408. 

Petition  to  vacate  street  or  alley.  No.  424. 

Petition  in  action  to  quiet  title,  Nos.  428,  434,  435. 

Petition   in  ejectment,  Nos.  436,  447. 

Petition  to  complete  decedent's  land  contract.  Nos.  44S.  453,  454. 

For  foreclosure  of  mortgage,  No.  307. 

For  foreclosure  of  mortgage  previously  assumed,  Nos.  324,  325. 

To  declare  deed  a  mortgage  and  to  foreclose  same,  No.  326. 

To  reform  mortgage  and  to  foreclose  the  same.  No.  325. 

For  foreclosure  of  mechanic's  lien.  No.  327. 

For  foreclosure  of  tax  lien.  No.  344. 

In  condemnation    proceedings.   No.   525. 

To  satisfy  judgment,  Form  No.  14. 

To  set  aside  fraudulent  deed,  Form  No.  23. 

To  marshal   liens.  Form  No.  24. 

To  sell  real  estate  upon  levy  made  under  a  foreign  execution.  Form 
No.  35. 

In  attachment  case,  Form  No.  48. 

Sell  entailed  estates,  Nos.  70.  84.  93. 

By  guardian  for  sale  of  an  insane  ward's  real  estate.  No.  163. 

For  petition  by  guardian  to  sell  ward's  real  estate.  No.   ISO. 

For  another  petition  by  guardian  to  sell  ward's  real  estate,  188.  193. 


792  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Petition — Forms    for — Continued. 

Petition  of  an  administrator  to  sell  decedent's  real  estate,  No.  94. 
Another  form  for  such  petition.  No.  116. 

Petition  for  sale  or  exchange  or  encumbrance  of  church  property,  Nos. 
296,  302. 

i 
Playgrounds — 

Condemnation   proceedings  for,  505. 

Power    plants — 

Real  estate  condemned  for,  505. 

Pleading — 

Forms  prescribed  by  statute,  1. 
Petition,  what  to  contain,  2. 
Petition,  requirement  as  to  caption,  3. 

Title  not  permitted  to  be  changed,  except  when   defendant  prosecutes 
error,  3. 

Precipe — 

Requirement  as  to,  6. 

Must  be  filed  with  clerk  for  all  provisional  remedies  and  processes  of 

every  kind,  6. 
For  an  execution,  89. 
Form  of  for  execution,  89. 
See  subject,  "Forms." 

Possession — 

See  subject,  "Occupying  Claimant." 

Necessary  in  the  action  to  quiet  title,  571. 

S»v  subject,  "Ejectment,"  579. 

Adverse  possession  in  ejectment,  580.  588. 

Nature  of  to  give  title  by  adverse  possession,  588. 

Probate    court — 

Exclusive  jurisdiction  in  eminent  domain,  521. 
Jurisdiction  probating  will,  611. 
Probate  of  will,  not   reviewable  on  error,  611. 
E.r  parte  probating  will,  611. 

Will    probate    can    not  be    set    aside    except    by    tin-    action    to   contest 
will,  till. 

Prisons — 

Condemnation  proceedings  for  workhouses,  bouses  of  refuge  and  farm 
schools,  505. 


index.  793 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 
Purchasers — 

What  kind  are  protected  by.  occupying  -claimant's  law,  594. 

See  subject,  "Judicial  Sale,"  "Subrogation." 

Making   unsatisfactory   bid,   112. 

Failure  to  pay,  punished  for  contempt,  117. 

Deed  to  be  delivered  to,  when,   118. 

Publication  of  notice — Forms  for — 

In  attachment,  No.  54. 

Proof  of  in  attachment.  No.  54. 

Proof  of  publication  of  sheriff's  sale  in  attachment  and  the  legal  notice 
No.  66. 

Administrator's  notice  of  sale  and  proof  of  publication,  Nos    111    112 

130,  137. 
Publication   of   notice   and   proof  of   in   sale  of  ward's  real  estate  by 
guardian,  No.  175. 

Receiver's  notice  to  creditors,  No.  233. 

Proof  of  same.  No.  234. 

Receiver's   sale,  No.   242. 

Proof  of  same.  No.  243. 

Notice  to  unknown  heirs  in  partition,  No.  2S4. 

Legal  notice  and  service  by  publication  in  partition.  No.  292. 

Legal    notice   and    proof  of   same   in    sale  or  exchange  of  church   prop- 
erty. Nos.  297,  303. 

Legal  notice  of  sale  of  real  estate  in  foreclosure  proceedings  and  proof 
of  same.  Nos.  3 lit.  318. 

Notice  of  >ale  of  real  estate  foreclosure  of  mechanic's  lien  and  proof  of 
same.  Nos.  340.  341. 

Publication  of  notice  to  unknown  heirs  in  foreclosure  of  tax   lien  and 

proof  of  same,  Nos.  34ti.  347. 
Legal  notice,  sale  of  real  estate,  foreclosure  of  tax  lien.  No.  352. 
Proof  of  same.  No.  351. 

Legal  notice  and  proof  of  same,   vacation  of  street  or  alley    Nos    425 
426. 

Service  by  publication  and  proof  of*  same  in  the  action  to  quiet  title 
Nos.  431,  432. 


o 

Quiet    title- 
Statutory  and  chancery,  566. 
The  action  before  the  statute,  567. 
Distinguished  from  ejectment,  568. 
Nature  of  the  action,  569. 
Essential  elements.  569. 
Nature  of  adverse  claim,  569. 


794  INDEX. 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Quiet   title — Continued. 

Instruments  cancelled,  569. 

Correct  mistake  in  deed,  569. 

Tax  claim  cloud,  569. 

List  of  purposes  for  which  action  may  be  maintained,  569. 

Boundary  line  settled,  570. 

Statutory  action,  571. 

Petition  should  allege  what,  572. 

Answers  in,  573. 

Cross-petitions,  573. 

Possession — Necessity  of  alleging,  574. 

Service — Actual — Constructive,  575. 

Decree  quieting  title,  576. 

Nature  and  effect  of,  570. 

Jury  may  be  demanded,  576. 

Injunction  allowed,  578. 

Quiet    title — Forms    of    procedure    to — 

Petition,  No.  428. 

Affidavit  for  service  by  publication,  No.  429. 

Entry  ordering  service  by  publication.  No.  430. 

Service  by  publication.  No.  431. 

Proof  of  publication.  No.  432. 

Decree  quieting  title,  No.  433. 

Another  form  for  petition,  No.  434. 

Another  form  for  decree  quieting  title,  No.  435. 


R 

Railroad    companies — 

See  subjects,  "Venue,"  "Service  of  Summons,"  "Managing  Agent. 

Real    actiou — 

Term  defined  and  explained.     See  Preface. 

Receivei- — 

rale  of  real  estate,  288  to  291. 

Source  of  receiver's  power  to  sell,  288. 

Statutory,  288,  289. 

Equitable,  288. 

Receiver's  duty,  288. 

Duty  as  to  rents,  289. 

Duty  as  to  claims  and  demands,  289. 

Appointment  may  be  made,  when,  290. 


INDEX.  7!).-) 

[Figures  preceded  by   "No."   refer  to  Forms;  otherwise  to  Sections.] 

Receiver — Continued. 

By  what  court  appointed,  290. 

What  facts  cause  for  appointment,  290. 

.Manner  in  which  appointment  is  made,  291. 

Instructions  of  court  as  to  sales  by,  291. 

Appraisers  in,  291. 

Conduct  of  sale  by,  291. 

What  facts  necessary  for  valid  sale,  291. 

In  foreclosure  of  mortgages,  372. 

Receive!1 — Forms- — 

for  petition,  No.  223. 

for  precipe,  No.  224. 

for  summons  and  return,  Xos.  225,  226. 

for  motion  for  receiver,  No.  227. 

for  notice  for  appointment,  No.'  228. 

for  order  appointing,  No.  229. 

for  order  appointing  counsel  for,  No.  230. 

for  motion  asking  instructions  as  to  notice  to  creditors,  No.  231. 

for  notice  to  creditors,  No.  233. 

for  proof  of  publication,  No.  234. 

for  inventory,  No.  235. 

for  application  for  appointment  of  appraisers,  No.  236. 

for  receiver's  report  of  appraisement,  No.  237. 

for  oath  of  appraisers,  No.  238. 

for  appraisement,  No.  238. 

for  confirmation  of  appraisement,  No.  240. 

for  receiver's  report,  No.  241. 

for  legal  notice  of  sale,  No.  242. 

for  proof  of  publication,  No.  243. 

for  confirmation  of  sale,  No.  244. 

for  receiver's  deed,  No.  245. 

Recoup — 

Vendee  may  recoup  amount  of  liens  and  incumbrances,  when,  592. 

Relief- 
Nature  of  in  ejectment,  589. 

Rents    and   profits — 

Accounting  for  in  partition,  329 

Residence — 

Not  same  as  domicile,  154. 
Non-resident  in  attachment,  154. 


79t>  INDEX. 

[Figures  preceded  by  "No."   refer  to   Forms;  otherwise  to  Sections.] 

Religious    society — 

See  subject,  "Church  and  Sale  of  Church   Property." 

Reversioner — 

In  an  entailed  estate,   193. 

To  take  estate  on  non-payment  of  tax,  when,  407. 

Dower    in,   4.1:;. 

Remainder — 

In  an  entailed  estate,   193. 

To  take  estate  on  non-payment  of  tax,  when,  40V. 

Dower    in.   453. 

Reply — Forms   for — 

"Reply  in  foreclosure  of  tax  lien,  No.  332. 
Reply  in  attachment  case,  No.  60. 

Res    judicata — 

See  "Judgments." 

Roads — 

Lien  for  work,  etc.,  381. 

Roadbed — 

Unfinished  of  railway  company  condemned,  how,  553. 

Record — 

»     See  subject,  "Complete  Record." 


s 

Sales — 

How  made  under  executions,  100. 
See  "Judicial  Sales." 
See  "Bona  fide  Furchaser." 
See  subject,  "Levy." 

Of  real  estate  must  be  for  two-thirds  of  appraised  value,  100,  110. 
When  court  may  fix  price  at  which  real  estate  may  be  sold,  110,  132. 
Who  may  not  bid  at  sales  of  real  estate,  111. 
Advertisements  of,  how  made,  113. 
Advertisements  of.  where  made,  113. 

Advertisements,  requirement  as  to  description  of  real  estate,  113. 
Advertisements,  requirements  as  to  street  number,   113. 
Advertisements,  requirements  as  to  roads  and  townships  where  land  is 
situate,  113. 


INDEX.  797 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Sales — ( 'on  t  in ti(  d. 

Advertisements,  requirement  as  to  newspaper,  114. 

Advertisements,  requirement  as  to  number  of  insertions   in  paper,   114. 

See  No.  136  for  form  of  publication. 

See  No.  137  for  proof  of  publication. 

Effect  of  mistake  in  publication,  114. 

Publication  of  sale  under  in  foreign  language.   113. 

Costs  of  such  publication,  115. 

Publication  in  another  language  dispensed  with,  how,   114. 

Confirmed,  how.  118. 

Deed  to  be  delivered,  when,  118. 

Officer  to  retain  purchase  money  until  sale  confirmed.  118. 

When  objection  to  for  irregularity  to  be  made,  118. 

Judgment  debtor  may  redeem  from,  when,   11!). 

Requirements  to  r#deem  under,  119. 

Sales  of  real  estate  by  sheriff  as  master  commissioner,  may  be  c  >m- 
pleted  by  his  successor  in  office  by  delivering  deed,  121. 

When  sales  of  real  estate  under  execution  required  to  take  place.   125. 

Decree  for  sale  on  judgment  and  marshaling  liens,  form  No.  27. 

Under  attachment  proceedings,  see  forms  Nos.  48  to  69,  inclusive. 

Under  execution,  see  forms  1  to  13,  inclusive. 

Under  judgment  in  one  county  by  execution  to  another,  14  to  47.  in- 
clusive. 

Under  foreign  execution,  see  forms  Nos.  35  to  47. 

Form  of  notice  of  sheriff's  sale  under  vendi,  No.  10. 

Proof  of  publication  of  notice  of,  No.  9. 

Form  for  notice  of,  No.  30. 

Proof  of,  No.  29. 

Form  of  notice  of  in  sale  where  liens  are  marshaled,  No.  44. 

Proof  of,  No.  43. 

By  assignee,  261  to  287. 

By  trustee  in  bankruptcy,  292  and  following. 

By  receiver,  288  and  following. 

See  "Entailed  Estate." 

By  administrator,  206  and  following. 

By  guardian,  245  and  following. 

Under  execution.  No.  6    and  following. 

Real  estate  in  partition,  318. 

By  an  administrator  or  executor,  prevented,  how,  219. 

Sale  of  real  estate — 

Procedure  by  which  court  acquires  power  to  sell  real  estate,  1  to  57. 

Under  judgments  and  decree,  58  to  140. 

Effect  of  under  void  or  voidable  judgment.  66. 

Must  he  appraised  before  sale.  103. 

May  be  sold  without  valuation,  when,  108. 

Sale  must  be  for  two-thirds  of  appraisement,  109. 


798  INDEX. 

[Figures  preceded  by   "No."   refer  to  Forms;   otherwise  to  Sections.] 

Sale   of   real    estate — Continued. 

"Requirement  as  to  advertisement  of  sale,  113. 

Requirement  as  to  description  or  location,  114. 

Language  in  which  notice  shall  he  published,  114.  115. 

Return  of  the  writ  by  sheriff,  110. 

Purchaser  may  be  punished  for  not  taking,  117. 

Confirmation  of  sale,  IIS. 

Order  for  deed,  118. 

Master  commissioner  can  make  sale,  120,  121. 

L'nder  writ  of  attachment,  141  to  189. 

Procedure  under,  Nos.  48  to  09. 

By  an  administrator  to  pay  decedent's  debts,  200  to  244. 

Forms  of  procedure  in  action  by  administrator  to  pay  decedent's  debts, 

Nos.  94  to  102. 
By  guardian,  245  to  200. 

Forms  of  procedure  in  sale  of  real  estate  by  guardian,  Nos.  103  to  199. 
By  an  assignee  for  the  benefit  of  creditors,  201  to  287. 
Forms  of  procedure  in  sale  of  real  estate  by  an  assignee,  Nos.  200  to 

222. 
By  a  receiver,  288  to  291. 

Forms  of  procedure  in  sale  of  real  estate  by  a  receiver,  Nos.  220  to  245. 
By  a  trustee  in  bankruptcy,  292  to  2!>4. 
Forms   of   procedure   in   sale   of   real   estate  by    trustee   in   bankruptcy, 

Xos.  240  to  255. 
By  partition  proceedings,  295  to  340. 

Forms  of  procedure  by  sale  of  real  estate,  Nos.  250  to  295. 
By  church  or  religious  society,  347  to  362. 
Forms  of  procedure  for  sale  of  real  estate  by  church  or  religious  society, 

Nos.  296  to  300. 
By  foreclosure  of  mortgage,  303  to  374. 
Forms  of  procedure  for  sale  of  real  estate  by  foreclosure  of  mortgage, 

Nos.  307  to  320. 
By  foreclosure  of  mechanic's  lien,  375  to  390. 
Forms  of  procedure  for  sale  of  real  estate  by  foreclosure  of  mechanic's 

lien,  Nos.  327  to  343. 
By  foreclosure  of  tax  or  assessment  lien,  397  to  431. 
Forms  for  procedure  in  sale  of  real  estate  by  foreclosure  of  tax  lien, 

Nos.  344  to  304. 


School    land — 

How  appropriated,  547,  556. 

Service — 

See   subject,   "Forms." 

Necessity  of  service  of  summons  in  an  action,  5. 

Careful  attention  as  to,  5. 


3KDEX.  799 

[Figures  preceded  by  "No."   refer  to   Forms;  otherwise   u>  Sections.] 

Service — Continued. 

Interest   in  real  estate  of  a   party  not  cut  off  without  summons  <>r  an 
entry  of  appearance,  5. 

Summons   directed    to   the   sheriff  <i   one   county,   and    served   by    the 

sheriff  of  another,  26. 
Manner  of  appointment  of  person  to  serve  summons,  20. 
The  affidavit  for  return,  when  summons  served  by  one  not  an  officer,  2t>. 
Parties  bound  by  return  of  service,  27. 
Service  conclusive  as  between  the  parties,  27. 
How  service  set  aside,  27. 
Manner  of  service  of  summons,  28. 
Upon  a  defendant  personally,  28. 
At  his  usual  place  of  residence,  28. 
Upon  a  partnership  and  in  its  firm  name,  28. 
When  return  of  service  to  be  made,  28. 
Manner  of  service  to  be  stated  in  writ,  28. 
Particular  instances  of  service,  28. 

Service  of  summons  upon  partners  in  attachment,  20. 
In  replevin,  29. 

Partnership  service  at  its  usual  place  of  doing  business,  29. 
Equivalent  of  service  of  summons,  30. 
Acknowledgment  on  the  back  of  summons  or  petition.  30. 
Acts  equivalent  to  entry  of  appearance,  30. 
Service  of  summons  set  aside,  31. 
Language  of  the  motion,  31. 
When  motion  to  set  aside  will  be  regarded  as  an  entry  of  appearance, 

31. 
How  corporations  served,  32. 

Manner  of  service  upon  a  railroad  company,  32. 
Upon  a  street  railroad  company,  32. 
Transportation  company,  32. 

When  service  may  be  made  upon  a  ticket  or  freight  agent,  32. 
Upon  a  conductor,  32. 
Upon  motormen,  32. 

Service  upon  river  transportation  company,  32. 
Who  is  a  managing  agent,  32,  34,  37. 
What  return  should  show,  33. 
The  service  upon  a  defunct  corporation,  33. 

Service   upon    mere   traveling    solicitor    <f    business    for    company    in- 
sufficient, 33. 
Upon  agent  of  company,  insufficient,  33. 
Upon  railway  company  in  the  hands  of  a  receiver,  33. 
For  particular  instances  of  service  upon  corporation,  33. 
Service  upon  joint  stock  company,  35. 
Service  upon  insurance  company,  35. 
Service  upon  minor,  38. 
Service  upon  minor  over  fourteen  years  of  age,  38. 


800  INDEX. 

[Figures  preceded  by  "No."   refer  to   Forms;  otherwise  to  Sections.] 

Service — Con  t  in  tied. 

Service  of  copy  of  petition  out  of  State,  53. 

Proved  by  affidavit,  53. 

Manner  of  such  service,  53. 

Instances  where  such  service  may  not  be  made,  53. 

Service  where  defendants  are  jointly  liable,  55. 

Manner  of  procedure  in  such  case,  55. 

Effect  of  judgment  when  part  of  defendants  served,  55 

Service    of    summons — 

Upon  corporation,   14. 

Upon  president,  chairman  or  president  of  the  board  of  directors  or 
trustees,  or  other  chief  officers,  14. 

Service  upon  insurance  company,  14. 

Service  of  summons  upon  an  oil  or  gas  company.  14. 

As  to  service  upon  county  infirmary  directors,  14. 

Service  of  summons  on  city  officials  in  city  located  in  t\v<»  or  more 
counties,  14. 

Manner  of  service  upon  railroads,  stage  companies  and  turnpike  com- 
panies, 15  and  Hi. 

When  charter  of  corporation  prescribes  where  suit  must  be  brought,  17. 

Where  action  against  non-residents  must  be  brought,  IS. 

Action  against  non-resident,  or  foreign  corporation  may  be  brought, 
where,   18. 

Service    of    summons    by    publication — 

Form  for  affidavit  and  proof  of  service.     See  subject,  "Forms." 

Constructive  service,  4(i. 

Personal  judgment  under,  46. 

How  made,  46. 

Operates  only  upon  property  of  defendant,  46. 

Controlled  entirely  by  statute,  40. 

The  statute  regulating  service  by  publication,  47. 

Recovery  of  real  estate,  47. 

Partition  of  same,  47. 

Foreclosure  of  mortgage  or  lien,  47. 

Suit  to  establish  or  set  aside  a  will,  47. 

By  an  executor,  administrator,  guardian,  or  other  trustee,  for  instruc- 
tions as  to  trust,  47. 

In  certain  appropriation  proceedings  against  a  foreign  corporation,  47. 

In  certain  actions  against  executors,  47. 

In  certain  actions  where  a  defendant  has  left  his  p'ace  of  residence  to 
avoid  service  of  summons,  47. 

In  case  where  no  summons  is  issued,  or  affidavit  filed,  4-8. 

Finding  of  court  as  to,  not  subject  to  collateral  atta.k,  49. 

General   discussion  as  to,  49. 


INDEX.  801 

[Figures  preceded  by  "No.*"  refer  to  Forms;  otherwise  t<>  Sections.] 

Service    of    summon?    by    publication — Continued. 

Affidavit  for,  50. 

Requirements  of,  50. 

For  form  as  to,  see  No.  53. 

Filing  of  jurisdictional,  50. 

Jurisdictional  in  attachment  proceedings,  50. 

How  service  as  to  publication  made,  51. 

Kind  of  paper,  51. 

For  six   weeks,  51. 

Statements  in.  51. 

When  errors  in,  immaterial,  51. 

Description  of  property  in,  51. 

Requirement  in  action  to  vacate  judgment,  51. 

Too  many  publications  do  not  vitiate,  51. 

In  certain  action  under  General  Code,  11631  to  11G43;  when  a  defend- 
ant is  a  non-resident  of  the  State,  in  case  where  a  corporation  has 
not  elected  officers,  47. 

Requirement  when  place  of  residence  of  defendant  is  known.  47. 

Duty  of  clerk  when  residence  of  defendant  known,  47. 

The  affidavit  for  service  by  publication,  47. 

Particular  instances  where  service  may  be  made  by  publication,  47. 

In  action  for  alimony,  47. 

Against  a  lunatic  defendant,  48. 

As  to  an  accounting  against  a  non-resident  who  had  been  a  guardian, 
47. 

Against  a  foreign  dissolved  corporation.   47. 

As  to  a  partnership,  47 

In  attachment  proceedings,  48. 

The  service  by  publication  complete,  when,  52. 

The  proof  of  service  by   publication,   52 

Constructive  service  against  an  unknown  heir,  54. 

Affidavit  for  such  service,  54. 

Order  of  court  as  to,  54. 

Attachment  the  affidavit,  proof  of  publication  and  order  in.  52,  53,  54. 

Service    by    publication — Forms    for — 

In  condemnation  proceedings,  No.  527. 

Affidavit  for  in  attachment,  No.  53. 

Proof  of  and  the  legal  notice  for  non-resident  in  attachment.  No.  54. 

Finding  of  the  court  and  approval  of  service  by  publication  in  attach- 
ment, No.  55. 

Affidavit  for  service  by  publication  in  sale  of  real  estate  by  adminis- 
trator to  pay  debts  of  decedent.  No.   1 55. 

The  legal  notice  to  defendant  by  publication.  No.  156. 

Unknown  heirs,  order  for  service  by  publication  on,  No.  283. 

Legal  notice  to  unknown  heirs,  No.  284. 

Legal  notice  and  proof  of  same — Sale  of  church  property,  No.  207. 


802  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Service   by    publication— Forms   for — Continued. 

Unknown  heirs,  order  for  service  on  in  foreclosure  cf  tax  lien,  No.  345. 
Publication  of  such  notice  and  proof  of  same,  Nos.  347,  34(i. 
Publication  of  legal  notice  in  vacation  of  street  or  alley.  No.  563. 
Order  for  service  by  publication  in  the  action  to  quiet  title,  No.  430. 
The  service  by  publication  and  proof  of  same,  in  the  action  to  quiet 
title,  Nos.  431,  432. 

Sewers — 

Lien  on  for  work,  381. 

Sewers    and    sewage — 

Real  estate  condemned,  505. 

Sheriff— 

Summons  must  be  directed  to  whom,  7. 

Summons  may  issue  to  sheriff  other  counties,  8. 

May  not  serve  summons  handed  him  by  another  sheriff,  26. 

Manner  in  which  he  may  serve  summons,  28. 

See  subjects,  "Summons"  and  "Service  of  Summons." 

Duties  as  to  sale  under  execution  statutory,  103. 

Statutes  strictly  construed,  103. 

To  indorse  on  writ  his  proceedings,   116. 

May  act  as  master  commissioner,  when,  121. 

When  required  must  make  sale  for  master  commissioners,  121. 

His  fees  in  such  cases,  121. 

Sales  of  real  estate  as  master  commissioner  may  be  completed  by  his 

successor  in  office  by  delivering  deed,  121. 
Recitals  required  in  deed  of  sheriff  or  master,  122. 
Execution  and  delivery  of  deed  by  sheriff,  122. 
To  make  deed,  when,  121. 
Effect  of  sheriff's  deed  as  evidence,  124. 
Successors  of,  to  make  deed,  when,  127. 
Recital  in  deed  by  successor  of,  127. 
Amercement  of  for  failure  to  perform  duties  under  execution,  140. 

Sheriff — Forms   for — 

Return  of  execution  where  levy  made  on  real  estate  and  not  sold  for 

want  of  time,  No.  5. 
Return  of  execution  where  no  levy  is  made,  No.  20. 

Return  of  foreign  execution  where  levy  is  made  on  real  estate,  No.  22. 
Return  of  writ  where  real  estate  is  sold  by  under  vendi  exponas,  No.  11. 
Sheriff's  deed  under  vendi  exponas,  No.  13. 

Sheriff's  return  under  decrees  and  order  of  sales,  Nos.  31,  30,  29. 
Return  of  an  order  of  attachment,  No.  53. 


INDEX.  803 

rFigures  preceded  by  "No."   refer  to   Forms;  otherwise  to  Sections.] 

Sheriff — Forms    for — Continued. 

Return  of  order  of  sale  in  attachment,  No.  65. 

Deed  for   real  estate  sold  under  attachment   proceedings,   No.  69. 

Return  in  sale  of  an  entailed  estate,  Nos.  74.   ,5,  7<i. 

Deed  in  sale  of  an  entailed  estate,  No.  82. 

Return  of  order  of  partition,  No.  269. 

Return  of   his  proceedings  in   sale  of  real   estate   under  foreclosure   of 

mortgage,  Nos.  315,  310,  317,  318.  319,  3-20. 
Deed  to  purchaser  at  foreclosure  of  mortgage,  No.  322. 
Return   in   proceedings   to   foreclose  a    mechanic's   lien,   Nos.   336,   337, 

338,  339,  340,  341. 
Deed  to  purchaser  in  foreclosure  of  mechanic's  lien.  No.  343. 
Return  in  proceedings  to  foreclose  a  tax  lien,  Nos.  350,  351,  352,  353, 

354,  355. 
Deed  to  purchaser  in  foreclosure  of  tax  lien.  No.  357. 
Writ  of  dower,  No.  371. 

Return  of  writ  of  dower  and  proceedings,  Nos.  372.  373.  374. 
Return  of  notice  condemnation  proceedings.  No.  392. 
Return  of   his  proceedings  under  venire  in  condemnation    proceedings, 

Nos.   403,   415. 
Return  of  writ  of  view  in  condemnation  proceedings,  Nos.  405,  420. 
Form  for  sheriff's  proceeding  under  an  execution.  Nc,   •"». 
Form  of  order  of  sale  directed  to  sheriff,  No.  7. 
Sheriff's  return  of,  No.   11. 
Form  for  order   <f   sale  from  clerk  to   sheriff  for   sale   of   real   estate. 

No.  28. 
Sheriff's  return  of.  No.  31. 
Order    of    sale    by    clerk    to    sheriff    under    levy    made    under    foreign 

executions,  his  return  of.  No.  45. 
Return  in  attachment.  No.  52. 
Return  of  order  of  sale   in  attachment.  No.   *;:>. 
Liability  in  partition  sale  as  to  proceeds,  321. 
Successor  to  make  deed,  323. 

Specific    performance — 

The  action  to  be  brought,  when,  12. 

Of  sale  of  lands  in  relation  to  lands  in  another  State,   12. 

See  subject,  "Venue." 

Stage    coach     companies — 

See   subjects,  "Venue,"  Service  of  Summons." 

Streets— 

Widening,   change   of.   extending,   el.-.,    hi    eminent    domain,   505. 

Lien  on  for  work,  etc..  381. 

Bond  of  owner  when  street  on  highway  to  be  opened,  577. 


804  INDEX. 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.) 

Streets — ( 'on  t  in  ued. 

Vacation  of  in  city,  village  or  hamlet,  562. 
Reverts  to  ownar,  when,  563. 
Petition  for  and  procedure  in.  •">'>4. 
Not  In  be  closed  until  damages  paid,  565. 
Petition  for  vacation  of  street.  No.  424. 
Publication  of  legal  notice,  No.  42.~>. 
Proof  of  publication,  No.  426. 
Order  and  decree  vacating,  No.  427. 

Statutes    of    limitation — 

Ejectment,    3S8. 

Subrogation — 

Of  purchasers  at  judicial  sale,  71. 

Does  not  apply  as  against  bona  fide  purchaser,  71. 

Summons — 

Rule  as  to  one  serving  sentence  in  penitentiary,  9. 
Form  in  action  on  judgment,  No.  16. 
Return  of  same.  No.  17. 
From  action  to  marshal  liens.  No.   17. 
Return  of  same,  No.   IS. 
Summons  to  another  county.  No.  38. 
Sheriff's  return  of,  No.  38. 
When  it  nay  issue  to  another  county,  8. 

Attorney  while  in  another  county  may  not  be  served,  when,  23. 
In  what  cases  persons  may  not  be  summoned,  23. 
Rule  as  to  members  of  legislature,  23. 
Returnable,  when,  24. 
Service  on  return  day  is  had,  24. 
Right  to  object  to  service  waived  by  answer,  24. 
New  summons  not  necessary  on  filing  amended  petition,  24. 
When  cause  of  action  changed,  new  summons  should  issue,  24. 
Alias  summons  should  issue,  when,  25. 
By  Avhom  service  of  summons  may  he  made,  26. 
How  may  be  made  by  one  not  an  officer,  26. 
In  what  case  return  to  be  made  under  oath,  26. 
What   it   must   contain — Form   required  by   statute,  7. 
To  whom    directed.   7. 
Indorsements  on,  7. 

No  indorsement  on  summons  in  equity  case,  when,  7. 
Judgment  can  not  be  taken  for  m.-i?  than  amount  named  in  summons,  7. 
Maker  or  acceptor  of  a  bill  liahle,  when.  !». 
Drawer  of  an  instrument  for  money  only  liable,  when.  0. 
Foreclosure  of  mortgage  authorizes  summons  for  a   defendant  in  any 
other  county  in  the  State,  9. 


INDEX.  $05 

[Figures  preceded  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

Summons — <  'on  t  in  tied. 

Creditor's  suit  to  set  aside  fraudulent  conveyance  to  be  brought  where 

land  lies.  10. 
Waiver  of  summons — Facts  constituting,  S. 

Venue  to  determine  where  summons  may   issue  to  another  county,  !>. 
What  is  meant  by  an  action  rightly  brought,  !». 
In  what  instance  defendants  may  be  y  ined  so  as  t     get   service  on  one 

in  another  county.  9. 
The  joint  contract  must  be  a   real,  not  a   fictitious  contract.  9. 
The  defendant  must  not  be  a  nominal   defendant.  9. 
An  action  to  enjoin  judgment— Sheriff  not  a  necessary  party.  9. 
For  forms  for.  see   Nos.    16,   24,   36,   37,   96,    11!..    181,   206,   258,   309, 

330,  366,  376. 
Sheriff's  return  of.     For  forms,  see  Nos.  17.  37,  97.   120,  207,  226,  259, 

309,  330.  367.  377. 
Its  command  and  service  in  condemnation  proceedings,  526. 
See    subjects,   "Service,"   Service   by    Publication,"    "Return." 

Surveyor — 

Duty  of  county  surveyor  in  delinquent  tax  sale  matters.  422. 

Survey — 

Lands  sold  at  delinquent  tax  sale.  422.  423.  428. 
Dispensed  with  at  delinquent  tax  sale,  when,  428. 

Superior    court — 

May  hear  condemnation  proceedings,  when,  555. 


Tax    lien — 

Procedure  in  foreclosure  of,  397. 

Lien   attaches,  when.   398. 

Penalty  for  non-payment  of  tax,  399. 

Life  estate,  owner  of  to  pay,  400. 

Duty  to  list  property,  whose,  401. 

Penalty  for  neglect  to  list,  402. 

Attorney's  duty  as  to  payment  of  client's  tax,  402,  404. 

Manner  in  which  attorney  or  agent  may  pay,  402. 

Agent's  duty  as  to.  402,  404. 

Guardian's  liability  for  neglect  to  pay  tax,  402. 

Executor's   duty   as   to.   402. 

Executor's  lien  on  payment  of,  406. 

When  lienholder  pays  tax  to  have  tax  lien,  408. 

Rights  of  joint  owner  who  pays  tax,  409. 

Partition  case — taxes  in,  409. 


806  INDEX. 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Tax    lien — Continued. 

Judicial    sale — Taxes    paid    in.   410. 

Publishing  delinquent   list.  412. 

Form  for,  412. 

Failure  to  publish,  412. 

Effect  of  failure  to  publish,  412. 

Auditor's  duty   in  tax   sale.   414.  415.   421. 

Proceedings  when  delinquent  list  not  published,  416,  417. 

List  of  delinquent  lands  to  be  sent   to  auditor  of  State,  41N,  421. 

Sale  of  delinquent   lands.  41!). 

Procedure  in,  410. 

Procedure  when  purchaser  fails  to  pay.  -420. 

Certificate  to  purchaser.  422. 

County   surveyor's  duty   in.   422. 

Surveys   made.    when.    423. 

Certificates  of  purchaser  at.  422. 

Certificates  assignable.  424. 

Deeds  made.  when.  423. 

Title  deed  at  delinquent  sale  for  tax,  426. 

Deed  as  evidence,  426. 

Tax  sale  cuts  out  dower  and  previous  liens.  427. 

Survey  in  sale  dispensed  with,  when.  42S. 

Purchase  by  joint  tenant,  429. 

When   title   at  tax  sale   invalid.  430,   4:51.   432. 

Statutes  strictly  construed,  437. 

May  be  shown  dehors  the  record  statute  not  followed,  431. 

Rights  of  purchaser  at  delinquent  sale — When  sale  invalid.  432. 

Effect  on  sale,  when  tract  charged  in  wrong  name.  433. 

Description  of  real  property  in  delinquent  sale.  43;"). 

Auditor  to  make  deed  of  land  at   delinquent   sale   heretofore,  435. 

Lost  certificate  of  delinquent  sale,  436. 

Destroyed  certificate  of  delinquent,  sale.   436. 

Auditor's  minutes  in  delinquent  tax  sale.  437. 

Auditor's  minutes  as  to  redeemed  lands.  43S. 

Sale  of  lands  by  mistake  on  which  taxes  have  been  paid,  430-457. 

To  redeem  lands — Application  to  be  made  to  auditor,  442. 

Redemption  of  delinquent  lands.  443.  444.  445.  440,  447,  448. 

Limitation  as  to,  443. 

Purchaser's  improvements — Paid.  how.  440. 

Sale  of  permanent  lease  for  tax.  450. 

Tax    lien,    foreclosure    of — Forms    of — 

Petition  in  foreclosure  of  tax  lien,  No.  344. 

Order  for  publication  on  unknown  heirs.  No.  345. 

Proof  of  publication,  No.  346. 

Legal   notice  of   publication,  No.  347. 

Order  foreclosing  lien  and  ordering  sale,  No.  348. 


INDEX.  807 

[Figures   preceded  by   "No."   refer  to  Forms;  otherwise  to  Sections.] 

Tax    lien,    foreclosure    of — Forms    of — Continued. 

Order  of  sale  from  clerk  to  sheriff.  No.  349. 

Sheriff's  return  of  his  proceedings  in.  No.  350. 

Proof  of  publication  of  notice  of  sale,  No.  350. 

Legal  notice  of  sale,  No.  352. 

Appointment  of  appraisers.  No.  353. 

Oath  of  appraisers.  No.  354. 

Appraisement,  No.  355. 

Confirmation  of  sale,  No.  350. 

Sheriff's  deed  to  purchaser,  No.  357. 

For  tax  certificate.  No.  358. 

For  auditor's  deed,  No.  359. 

Petition  by  treasurer  of  county  to  sell  land  to  pay  tax.  No.  360. 

Order  of  sale  in.  No.  361. 

Answer  in.  No.  362. 

Reply  in,  No.  363. 

Another  form  for  order  of  court  foreclosing  lien.  No.  364. 

Tenant — 

Dower  tenant  failing  to  pay  tax  forfeits  estate,  when.  407. 
Curtesy  tenant  failing  to  pay  tax  forfeits  estate,  when,  407. 
Other  life  tenant  failing  to  pay  tax  forfeits  estate,  when,  407. 
Rights  of  joint  tenant  who  pays  tax  in,  400. 
Rights  of  purchaser  of  interest  of  joint  tenant  as  to  tax,  429. 

Title- 
Delinquent  land  sale,  426.  430. 
Transfer  of  by  assignment  of  dower,  452  to  501. 

Procedure  by  transfer  of  title  by  assignment  of  dower,  Nos.  365  to  387. 
Transfer  of  by  condemnation  proceedings,  502  to  561. 
Forms  for  procedure  in  transfer  of  title  by  condemnation  proceedings, 

Nos.  388  to  423. 
Transfer  of  by  vacation  of  street  or  alley.  562  to  565. 
Forms  for  procedure  by  transfer  or  vacation  of  street  or  alley.   Nos. 

424  to  427. 
Confirmation  of  by  the  action  to  quiet  title,  566  to  578. 
Forms  for  procedure  by  which  title  is  confirmed  by  the  action  to  quiet 

title,  Nos.  428  to  435. 
Required  to  give  party  benefit  for  improvements,  594. 
Plaintiff's   title  in  ejectment,  585. 
Back  to  common  source  in  ejectment,  586. 

Trial— 

Who  entitled  to  in  condemnation  proceedings,  528. 
Time  of  in  condemnation  proceedings,  532. 
Adjournments  in  condemnation  proceedings,  532. 


808  INDEX. 

[Figures  preceded  by  •'No."  refer  to  Forms;  otherwise  to  Sections.] 

Trial — Continued. 

Title  to  real  estate  by  condemnation    proceedings,   502   and  following. 

Forms  in.     See  Nos.  388  and  following. 

See  subject,  "Judgments,"  "Caveat   Emptor." 

Examination  of  before  bidding  at  sheriff's  sale,  65. 

Unaffected  by  sale  under  void  judgment.  65. 

Trustees — 

Forms  for  bond  in  sale  of  an  entailed  estate.  Nos.  78,  89. 
Trustee's  duties  in  sale  of  church  property,  347.  348,  349,  351,  354. 

358,  361. 
May  not  l>id  at  liis  sale  of  real  estate.  111. 

Testamentary   guardian — 

May  consent  to  sale  of  entailed  estate,  199. 

Tire- 
Lien  for  furnishing,  377. 

r 

Timber    lauds — 

Dower  of  widow  in,  483. 

Sherifi  s  duty  as  to  dower  in,  483. 

Procedure  as  to  assignment  of  dower  in,  483,  483  note. 


u 

Universities — 

Real  estate  condemned  for,  505. 


"Verdict — 

Motion  to  set  aside,  80. 
Judgment  on,  80. 
See  subject,  "Judgment." 
To  be  entered  on  judgment,  81. 
To  be  entered  against,  when,  82. 
Special,  81. 

On   condemnation  proceedings,  Nos.   40fi,   421. 
Confirmation  of  in  eminent  domain,  540. 
In   foreclosure  of  mechanic's  lien,  No.  333. 
In  attachment  on  trial  of  issues.  No.  til. 

Judgment    and    execution    on    verdict    for    plaintiff— Occupying   claim- 
ant's law,  600. 
For  occupying  claimant,  601. 


INDEX.  809 

[Figures  preceded  by  "No."   refer  to  Forms;  otherwise  to  Sections.] 

Value — 

Witness  as  to  opinion  of  value  of  land.  513  note. 
Witness  as  to  amount  of  damage,  513  note. 

Venue — 

.Mortgagee    of   real    property    not    part    of    an   entire    tract,    situate    in 
more  than  one  county,   not  charged   with   constructive    notice,    11. 
As   to  specific  performance  of  contract  of  sale  of   real   estate,    12. 
Specific    performance    may    be   compelled    in   county    where    defendants, 

or  any  of  them,  reside,    12. 
May   be   brought  where   land   is  situated.    12. 

May   be  enforced  as  to  contract   concerning  Lands   in  another   State.    L2. 
The  action  for  the  recovery  of  a  fine,  forfeiture,  or  penalty  imposed  by 

statute,  13. 
The   rule   where   an  offense   is  committed  on   a   river,   watercourse,   or 

road,  the  boundary  of  a  State  or  two  or  more  counties.  13. 
Change  to  what  court,  21. 

Costs  of  jury  in   same — How  allowed   and  paid,  21. 
Constitutionality  of  the  law  as  to,  21. 

The  question  of  venue  to  be  raised  by  answer,  when.    10. 
The  action  to   recover   damages   for   wrongful    act,    neglect,   etc.,   where 

to   be   brought,   19. 
Rule  where  several  defendants  in  several  counties   have  been   sued  for 

negligence,    lib 
Rule    in   action    to    foreclose    mortgage   and    for    a    personal    judgment, 

when    a    defendant    lives   in   another   county,    lb. 
Change  of,   how   secured,  20. 
Must  be  to  an  adjoining  county,  when.  20. 
Rule  when  the  action  in  superior  court,  20. 
Change  of  in  suit  by  or  against  corporation,  21. 
What  the  affidavit   therefor   must    contain,   21. 
Duty  of  court  as  to.  21. 

Property  of,  or  debts  owing  to  the  defendant  may  be  found,  18. 
A  nonresident   or   foreign   corporation    may   be   sued,  where  the.  cause 

of  action,  or  some  part  thereof,  arose,   18. 
Non-resident  or   foreign   corporation   may  be   sued  where   they   may  be 

found,   IS. 
As  to  actions  brought  to  enforce  liability  of  stockholder,   IS. 
When  personal   service   may   not   be  made  out  of   State  on  a   non-resi- 
dent. 18. 
Rule  as  to  where  all   other  actions  must  be  brought,    10. 
Must  Ik-  brought  in   county  where  defendant   resides   or    ma*   be   sum- 
moned, 10. 
Where  executor,  administrator,  guardian   may    be    sued.    ]!>. 
Venue  statutes   to  be   liberally   construed,    10. 
When  the  action  may  be  brought  in  two  or  more  counties.   13. 


810  INDEX. 

[Figures   preceded  by  "No."   refer  to  Forms;  otherwise   to  Sections.] 

Venue — ( 'ontin  ued. 

Action  against  a  public  officer  to  be  brought   where  the  cause  of  action 

arose,   13. 
As  to  corporations,  14. 
As  to  partners  in  attachment.  211. 
As  to  partners  in  replevin,  29. 
For  the  recovery  of  real  property,  9. 
For  the  recovery  of  an  interest  in  real  property,  f). 
For   partition   of  real   property.  0. 

For  sale  of  real  property  under  mortgage.  lien,  or  charge,  9. 
For  an  action  under  the  trust  statute,  9. 
The  action  where  part  of  property  is  situated.  11. 


w 

Water  works — 

Real  estate  condemned  for,  505. 

Waste 

Forfeits   dower,    when.   473. 

Wardens — 

Duty  of  sale  of  church  property,  348. 

Will- 
No   order   of   sale   required  to   sell    to   pay  debts,   when,   will   sale  not 

authorized  by  will.   241. 
May  be  construed  in  partition  suit.  302. 
Where  assets   marshaled  according  to  terms  of.  2 IS. 

Widow — 

May  give  bond  to  prevent  sale  of  real  estate,  221- 
See  subject,  "Dower." 
See  subject.   "Answers." 

Will— Contest  of— 

Nature  of  the  action.  611. 

Answer  in,  661. 

In  chancery,  or  under  code,  611. 

Issues  made  up,  how.  Oil. 

Proceedings  in  probate  court,  611. 

Proceedings  in  probate  c<  urt  reviewable,  611. 

Proceedings   in      rror.   (ill. 

Probate  in.  ex  parte  in.  it^  nature.  611. 

No  appeal  on  refusal  to  probate,  611. 


INDEX.  HI 

[Figures  preceded  by  "No."   refer  to  Forms;  <>t!i<  9  -.] 

"Will — Contest    of — Contintu 

Prima  fa rir  case.  611. 

In  what  court  action  brought,  till. 

Jury  in.  611. 

The  scope  of  the  inquiry.  t>12. 

May  be  a?  comprehensive  as  inquiry  for  admission  to,  612. 

Probate,  same  rule-?  as  to  codicil  a-  to  will.  612. 

Who  may  make.  613. 

Disponing   mind  and  memory.  *i  1  -t. 

Discussion  of.  014. 

Particular    instance*   of.    what    constitutes,    614    note. 

Undue  influence,  615. 

Discussii  d  of,  615. 

Restraint.  615. 

Fear.    615. 

Disease.  615. 

Passion,    prejudice,    religious    influence,    secular    training,    not    undue 

influence — Persuasion,  earnest   solicitation,  615. 
The  manner  in  which  will  must  be  executed.  615. 
Writing,  hand-written  or  typewritten.  616. 

signature  of  witness,  tilt!. 

Intention  of  the  legislature  as  t<>  attestation,   signature,  616. 

•Signing  in  the  wrong  place,  616. 

Blanks  in  for  signature.  616. 

Particular  instances  of  attestation  and  non-attestation,  ni  16. 

Acknowledgment   by  testator.   617. 

Attestation  of  will.  617. 

Witnesses  may  sign.  when.  617.  617    note. 

May  be  revoked,  how.  618. 

Tearing,  cancelling,  etc..   618. 

Will  once  in  existence  and  lost,  presumption  as  to,  tilS  note. 

Declaration  of  testator  as  to,  618   note. 

Clerk  must  certify  to  probate  court,  what.  619. 

Duty  of  probate   judge  as  to  notice  of  contest,  620. 

Papers  to  be  sent  to  common  pleas,  620. 

Return  from  common  pleas  to  probate  c  turt,  620. 

The  manner  in  which  issue  in  contest  made  up,  621. 

The  nature  of  the  action.  621. 

Statute  controls  the  issue,  621. 

Conduct  of  the  trial.  622 

Who  must   open  and  close  evidence  and   argument,  622. 

The  action  to  be   tried  by  jury.   02:>. 

Court  may  direct  verdict,  when.  623. 

Effect  of  court  and  jury  in  will  contest,  623. 

Effect   of  order  of  probate  on   the  issue,  624. 

Instruction   as  to  preponderance  of  evidence.   624. 

What  testimony  competent  in,  625. 


812  INDEX. 

[Figun  -  fled  by  "No."  refer  to  Forms;  otherwise  to  Sections.] 

"Will — Contest    of — Continw 

Who  may  contest  a  will  or  codicil,  626. 

ssary  parties  to  the  action,  627. 
Statute  of   limitation   as   to   action.   628 
Appeal    in.    629. 

"Will  Contest— Forms  in— 

The  petition.  No.  455. 

The  summons  in  the  action,  No.  4">7. 

SlieiiiT's  return  on  the  summons,  \   .  458. 

Journal  entrj  and  certificate  of  probate  court  in  the  action  to  con- 
test will,  No.  460. 

Certificate  to  court  of  common  pleas  in  action  to  contest  will,  No.  461. 

Joint  answer  of  the  defendants   in   action.   No.   4'r2. 

The   verdict   <•(   the  jury   sustaining   the   will,   No.   463. 

Motion   tor  new   trial.  No.  464. 

The  judgment  of  the  court  overruling  motion  for  a  new  trial  and 
sustaining  the  will.  No.  465. 

The  certificate  of  the  clerk  of  the  court  of  common  pleas,  with  copy 
of  final  judgment  to  the  probate  court  after  final  judgment  is 
rendered  in  the  action  to  ci  ntest  the  validity  of  the  will.  No.  4titi. 

The  application  for  the  appointment  of  guardian  ad  litem   in.  No.  4(i7. 

The  order  of  the  court  appointing  guardian  ad  litt  m  for  minor  de- 
fendants,  in.   No.   468. 

Another  form  for  a  petition,  No.  471. 

Another   form   for   the   answer   of   defendants,   No.    672. 

Petition   to  contest   will   for  the   reason   that   the   testator   was   not   of 
sound    mind    and    memory    and    under    undue     influence    and    re 
straint   in  attempting  to  make  same.  No.  473. 

Petition  to  contest  nuncupative  will,  No.  474. 


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